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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report: October 27, 1998
REALTY INCOME CORPORATION
-------------------------
(Exact name of registrant as specified in its charter)
MARYLAND 1-13318 33-0580106
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(State of (Commission File Number) (IRS Employer
Incorporation) Identification No.)
220 WEST CREST STREET, ESCONDIDO, CALIFORNIA 92025
--------------------------------------------------
(Address of principal executive offices) (Zip Code)
(760) 741-2111
--------------
(Registrant's telephone number, including area code)
NONE
----
(former name or former address, if changed since last report)
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Item 5. OTHER EVENTS.
Realty Income Corporation (the "Company") is filing this
Current Report on Form 8-K in connection with the issuance of $100,000,000
principal amount of 8 1/4% Monthly Income Senior Notes due November 15, 2008
(the "Notes"), pursuant to the shelf registration statement on Form S-3 under
the Securities Act of 1933, as amended (the "1933 Act"), filed with the
Securities and Exchange Commission (the "Commission") on August 25, 1997
(File No. 333-34311), as amended by Amendment No. 1 filed with the Commission
on September 16, 1997 (as so amended, the "Registration Statement"). The
exhibits listed below are being listed herewith in lieu of filing them as an
exhibit to the Registration Statement, and, since this form is incorporated
by reference in the Registration Statement, such exhibits are set forth in
full in the Registration Statement.
Item 7. EXHIBITS.
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<S> <C>
1.1 Purchase Agreement, dated October 23, 1998, between Merrill Lynch,
Pierce, Fenner & Smith Incorporated, A.G. Edwards & Sons, Inc.,
PaineWebber Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation, EVEREN Securities, Inc., Sutro & Co. Incorporated and
Wheat First Securities, Inc. (as Representatives of the several
Underwriters named on Schedule A thereto), and the Company.
4.1 Form of Indenture dated as of October 28, 1998 between the Company and
The Bank of New York.
4.2 Pricing Committee Resolutions.
4.3 Form of 8 1/4% Note due 2008.
5.1 Opinion of Latham & Watkins.
5.2 Opinion of Ballard Spahr Andrews & Ingersoll
12.1 Ratio of Earnings to Fixed Charges
23.1 Consent of Latham & Watkins (contained in the opinion filed as
Exhibit 5.1 hereto).
23.2 Consent of Ballard Spahr Andrews & Ingersoll (contained in the opinion
filed as Exhibit 5.2 hereto).
23.3 Consent of KPMG Peat Marwick LLP
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: October 27, 1998
REALTY INCOME CORPORATION
By: /s/ Michael R. Pfeiffer
--------------------------------
Name: Michael R. Pfeiffer, Esq.
Title: Senior Vice President,
General Counsel and Secretary
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EXHIBIT INDEX
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<CAPTION>
Exhibit No. Description
- ----------- -----------
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1.1 Purchase Agreement, dated October 23, 1998, between Merrill
Lynch, Pierce, Fenner & Smith Incorporated, A.G. Edwards & Sons,
Inc., PaineWebber Incorporated, Donaldson, Lufkin & Jenrette
Securities Corporation, EVEREN Securities, Inc., Sutro & Co.
Incorporated and Wheat First Securities, Inc. (as Representatives
of the several Underwriters named on Schedule A thereto), and the
Company.
4.1 Form of Indenture dated as of October 28, 1998 between the
Company and The Bank of New York.
4.2 Pricing Committee Resolutions.
4.3 Form of 8 1/4% Note due 2008.
5.1 Opinion of Latham & Watkins.
5.2 Opinion of Ballard Spahr Andrews & Ingersoll
12.1 Ratio of Earnings to Fixed Charges
23.1 Consent of Latham & Watkins (contained in the opinion filed as
Exhibit 5.1 hereto).
23.2 Consent of Ballard Spahr Andrews & Ingersoll (contained in the
opinion filed as Exhibit 5.2 hereto).
23.3 Consent of KPMG Peat Marwick LLP
</TABLE>
<PAGE>
Exhibit 1.1
Purchase Agreement, dated October 23, 1998, between Merrill
Lynch, Pierce, Fenner & Smith Incorporated, A.G. Edwards & Sons,
Inc., PaineWebber Incorporated, Donaldson, Lufkin & Jenrette
Securities Corporation, EVEREN Securities, Inc., Sutro & Co.
Incorporated and Wheat First Securities, Inc. (as Representatives
of the several Underwriters named on Schedule A thereto), and the
Company.
$100,000,000
REALTY INCOME CORPORATION
8 1/4% Notes due 2008
PURCHASE AGREEMENT
October 23, 1998
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Table of Contents
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Page
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PURCHASE AGREEMENT 1
SECTION 1. Representations and Warranties.............................. 3
(a) Representations and Warranties by the Company......... 3
(i) Compliance with Registration Requirements... 3
(ii) Incorporated Documents...................... 4
(iii) Independent Accountants..................... 4
(iv) Financial Statements........................ 4
(v) No Material Adverse Change in Business...... 5
(vi) Good Standing of the Company................ 5
(vii) Good Standing of Subsidiaries............... 5
(viii) Capitalization.............................. 6
(ix) Authorization of Agreement.................. 6
(x) Authorization of Common Stock............... 6
(xi) Absence of Defaults and Conflicts........... 6
(xii) Absence of Labor Dispute.................... 7
(xiii) Absence of Proceedings...................... 7
(xiv) Accuracy of Exhibits........................ 7
(xv) Possession of Intellectual Property......... 7
(xvi) Absence of Further Requirements............. 8
(xvii) Possession of Licenses and Permits.......... 8
(xviii) Investment Company Act...................... 8
(xix) Partnership Agreements...................... 8
(xx) Properties.................................. 9
(xxi) Insurance................................... 10
(xxii) Environmental Matters....................... 10
(xxiii) Qualification as a Real Estate Investment Tr 11
(xxiv) Registration Rights......................... 12
(xxv) Tax Treatment of Certain Entities........... 12
(xxvi) Indenture................................... 12
(xxvii) Securities.................................. 12
(xxviii) Description of Indenture and Securities..... 13
(xxix) Ranking of Securities....................... 13
(xxx) Reincorporation............................. 13
(xxxi) Prior Registration Statement................ 13
(b) Officer's Certificates................................ 13
SECTION 2. Sale and Delivery to Underwriters; Closing.................. 13
(a) Initial Securities.................................... 13
(b) Option Securities..................................... 13
(c) Payment............................................... 14
(d) Denominations; Registration........................... 14
SECTION 3. Covenants of the Company.................................... 14
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(a) Compliance with Securities Regulations and Commission
Requests............................................. 14
(b) Filing of Amendments................................... 15
(c) Rule 434............................................... 15
(d) Delivery of Registration Statements.................... 15
(e) Delivery of Prospectuses............................... 15
(f) Continued Compliance with Securities Laws.............. 16
(g) Blue Sky Qualifications................................ 16
(h) Rule 158............................................... 16
(i) Use of Proceeds........................................ 17
(j) Reporting Requirements................................. 17
(k) Listing................................................ 17
(l) Restriction on Sale of Securities...................... 17
SECTION 4. Payment of Expenses......................................... 17
(a) Expenses............................................... 17
(b) Termination of Agreement............................... 18
SECTION 5. Conditions of Underwriters' Obligations..................... 18
(a) Effectiveness of Registration Statement................ 18
(b) Opinions of Counsel for Company........................ 18
(c) Opinion of Counsel for Underwriters.................... 18
(d) Officers' Certificate.................................. 19
(e) Accountant's Comfort Letter............................ 19
(f) Bring-down Comfort Letter.............................. 19
(g) Rating Requirement..................................... 19
(h) Letter Regarding Compliance with the Acquisition Credit
Agreement............................................. 19
(i) Approval of Listing.................................... 20
(j) Additional Documents................................... 20
(k) Conditions to Purchase of Option Securities............ 20
(l) Termination of Agreement............................... 21
SECTION 6. Indemnification............................................. 21
(a) Indemnification of Underwriters........................ 21
(b) Indemnification of Company, Dires and
Officers............................................. 22
(c) Actions against Parties; Notification.................. 22
(d) Settlement without Consent if Failure to Reimburse..... 23
SECTION 7. Contribution................................................ 23
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.................................................. 24
SECTION 9. Termination of Agreement.................................... 24
(a) Termination; General................................... 24
(b) Liabilities............................................ 25
SECTION 10. Default by One or More of the Underwriters................. 25
SECTION 11. Notices.................................................... 26
SECTION 12. Parties.................................................... 26
SECTION 13. GOVERNING LAW AND TIME..................................... 26
SECTION 14. Effect of Headings and Table of Contents................... 26
</TABLE>
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$100,000,000
REALTY INCOME CORPORATION
(a Maryland corporation)
8 1/4% Monthly Income Senior Notes due 2008
PURCHASE AGREEMENT
October 23, 1998
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. Edwards & Sons, Inc.
PaineWebber Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
EVEREN Securities, Inc.
Sutro & Co. Incorporated
Wheat First Securities, Inc.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Realty Income Corporation, a Maryland corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of the other
underwriters named in Schedule A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Merrill Lynch, A.G. Edwards & Sons,
Inc., PaineWebber Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation, EVEREN Securities, Inc., Sutro & Co. Incorporated and Wheat
First Securities, Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to the sale by the Company and the purchase
by the Underwriters, acting severally and not jointly, of the respective
principal amounts set forth in said Schedule A of $100,000,000 aggregate
principal amount of the Company's 8 1/4% Monthly Income Senior Notes due 2008
(the "Notes"), and with respect to the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of $15,000,000 aggregate
principal amount of Notes to cover over-allotments, if any. The aforesaid
$100,000,000 aggregate principal amount of Notes (the "Initial Securities")
to be purchased by the Underwriters and all or any part of the $15,000,000
aggregate principal amount of Notes subject to the option described
<PAGE>
in Section 2(b) hereof (the "Option Securities") are hereinafter called,
collectively, the "Securities." The Securities are to be issued pursuant to
an indenture dated as of October 28, 1998 (the "Indenture") between the
Company and The Bank of New York, as trustee (the "Trustee").
The Company understands that the Underwriters propose to make
a public offering of the Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-34311) and Amendment No. 1 thereto covering the registration of, among
other things, the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), in each case including the related preliminary prospectus
or prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus supplement and, if
required by Rule 424(b) (as defined below), a prospectus in accordance with
the provisions of Rule 415 ("Rule 415") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b)
of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the
Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such Term Sheet that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration
statement at the time the Term Sheet is filed with the Commission pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each
prospectus, together with any related prospectus supplement, relating to the
Securities used before such registration statement became effective, and each
prospectus, together with the related prospectus supplement, relating to the
Securities that omitted the Rule 434 Information or that was captioned
"Subject to Completion" that was used after such effectiveness and prior to
the execution and delivery of this Agreement, is herein called, together with
the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act, a "preliminary prospectus." Such registration
statement, as amended and including the exhibits thereto, schedules, if any,
and the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time it became effective and including,
if applicable, the Rule 434 Information, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The prospectus dated October
1, 1997 and the final prospectus supplement relating to the offering of the
Securities, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called, collectively, the "Prospectus." If Rule 434 is
relied on, the term "Prospectus" shall refer to the preliminary prospectus
supplement dated October 16, 1998, together with the prospectus dated October
1, 1997 and the Term Sheet and all documents incorporated by reference
therein pursuant to Item 12 of Form S-3, and all references in this Agreement
to the date of the Prospectus shall mean the date of the Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary
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prospectus, the Prospectus or any Term Sheet or any amendment or supplement
to any of the foregoing shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "described," "disclosed,"
"contained," "included" or "stated" in the Registration Statement, any
preliminary prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements and
schedules and other information which is incorporated or deemed to be
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), which is incorporated or deemed to be incorporated
by reference in the Registration Statement, such preliminary prospectus or
the Prospectus, as the case may be.
All references in this Agreement to properties or improvements
"owned by" or "of" the Company or any of its subsidiaries shall be deemed to
mean and include all properties and improvements which are leased by the
Company or any of its subsidiaries, as lessee.
As used in this Agreement, the term "Consolidation" means the
merger of 25 limited partnerships (the "Partnerships") and RIC Properties
Ltd., a California limited partnership ("RIC Properties"), into the Company
on August 15, 1994; "Merger" means the merger of R.I.C. Advisor, Inc., a
California corporation (the "Advisor"), into the Company on August 17, 1995;
and "Reincorporation" means the reincorporation of the Company in the State
of Maryland, which was effectuated by merging the Company into Realty Income
of Maryland, Inc., a Maryland corporation (the "Maryland Corporation") which
subsequently changed its name to Realty Income Corporation, with the Maryland
Corporation as the surviving corporation of such merger.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrAnts to each Underwriter as of the date hereof and as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are threatened by the Commission, and any
request on the part of the Commission for additional information has
been complied with. The Indenture has been duly qualified under
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the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the
Trustee has duly filed with the Commission a Statement of Eligibility
on Form T-1 as part of the Registration Statement.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof and at the Closing Time (and, if any Option
Securities are purchased, at each Date of Delivery), the Registration
Statement, any Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the applicable requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the 1939
Act (the "1939 Act Regulations"), and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and, at the date hereof and at the Closing Time (and, if any Option
Securities are purchased, at each Date of Delivery), neither the Prospectus
nor any amendments or supplements thereto contained or will contain any
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the representations and warranties in this paragraph shall not
apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished
to the Company in writing by any Underwriter through Merrill Lynch expressly
for use in the Registration Statement or Prospectus.
Each preliminary prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act and the 1933 Act Regulations
and, if applicable, each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR except to the extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated
or deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the date
hereof and at the Closing Time (and, if any Option Securities are
purchased, at each Date of Delivery), did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
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(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The consolidated financial
statements of the Company included in the Registration Statement and
the Prospectus, together with the related schedule and notes, present
fairly the financial position of the Company and its subsidiaries at
the dates indicated and the consolidated statements of income,
stockholders' equity and cash flows of the Company and its subsidiaries
for the periods specified; said consolidated financial statements have
been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data, if any, and summary financial information, if any, included in
the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The Company's
ratios of earnings to fixed charges (actual and, if any, pro forma)
included in the Prospectus have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise (a "Material Adverse Effect"), whether or not arising in the
ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular monthly distributions on the
Common Stock, par value $1.00 per share, of the Company (the "Common
Stock") in amounts per share that are consistent with past practice,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its stock.
(vi) GOOD STANDING OF THE COMPANY. The Company is a corporation
duly organized and validly existing under the laws of the State of
Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason
5
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of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. The only subsidiaries of
the Company are Realty Income Texas Properties, L.P., a Delaware
limited partnership, and Realty Income Texas Properties, Inc., a
Delaware corporation, and the Company does not hold any equity interest
in any corporation, limited liability company, partnership, joint
venture or entity other than such subsidiaries. Each subsidiary of the
Company has been duly organized and is validly existing as a
partnership or corporation, as the case may be, in good standing under
the laws of the state of its organization and has power and authority
as a partnership or corporation, as the case may be, to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; each such subsidiary is duly qualified as a foreign
partnership or corporation, as the case may be, to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding partnership
interests and shares of capital stock, as the case may be, of each such
subsidiary have been duly authorized (if applicable) and validly issued
and are fully paid and are non-assessable (except to the extent that
the general partners of subsidiaries which are partnerships may be
liable for the obligations of such partnerships) and are owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding partnership interests or shares of
capital stock, as the case may be, of such subsidiaries were issued in
violation of preemptive or other similar rights arising by operation of
law, under the partnership agreement or charter or bylaws, as the case
may be, of any such subsidiary or under any agreement or instrument to
which the Company or any such subsidiary is a party.
(viii) CAPITALIZATION. The authorized stock of the Company and
the issued and outstanding stock of the Company are as set forth in the
line items "Preferred Stock" and "Common Stock" under the caption
"Capitalization" in the Prospectus (except for subsequent issuances, if
any, pursuant to employee benefit plans referred to in the Prospectus
or pursuant to the exercise of options referred to in the Prospectus
and the retirement of 20,279 shares of common stock on August 14, 1998).
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
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(x) AUTHORIZATION OF COMMON STOCK. The shares of issued and
outstanding Common Stock have been duly authorized and validly issued and
are fully paid and non-assessable; none of the outstanding shares of
Common Stock was issued in violation of the preemptive or other similar
rights arising by operation of law, under the charter or bylaws of the
Company, under any agreement or instrument to which the Company or any of
its subsidiaries is a party or otherwise.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its subsidiaries is in violation of its charter or bylaws or
its partnership agreement, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which any
of them may be bound, or to which any of the respective properties or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments"), except for such defaults that would not
have a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Indenture and the Securities and the
consummation of the transactions contemplated herein and therein
(including the use of the proceeds from the sale of the Securities to
repay borrowings under the Amended and Restated Revolving Credit
Agreement dated as of December 30, 1997 among the Company, the banks
named therein and The Bank of New York, as agent and swing line bank and
BNY Capital Markets, Inc., as arranger (the "Acquisition Credit
Agreement"), as described in the Prospectus under the caption "Use of
Proceeds" but excluding any use of proceeds for other general corporate
purposes for which specific corporate authorization may be required) and
compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any subsidiary pursuant to, any Agreement or
Instrument, except for such conflicts, breaches or defaults or liens,
charges or encumbrances that, individually or in the aggregate, would not
have a Material Adverse Effect, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or
any applicable law, rule, regulation, or governmental or court judgment,
order, writ or decree. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary of the
Company or any of its subsidiaries.
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(xii) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary of the Company exists or, to
the best knowledge of the Company, is imminent; and the Company is not
aware of any existing or imminent labor disturbance by the employees of
any of its or any subsidiary's tenants, which, in either case, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. The Company has not received any
notice of any action, suit, proceeding, inquiry or investigation before
or by any court or governmental agency or body, domestic or foreign, and,
to the best knowledge of the Company, there is no such proceeding now
pending or threatened, against or affecting the Company or any of its
subsidiaries, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which could reasonably be
expected to result in a Material Adverse Effect, or which could
reasonably be expected to materially and adversely affect the
consummation of this Agreement or the performance by the Company of its
obligations under this Agreement, the Indenture or the Securities; the
aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or
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decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations under this
Agreement, the Indenture or the Securities, in connection with the
offering, issuance or sale of the Securities hereunder or the
consummation of the other transactions contemplated by this Agreement,
the Indenture or the Securities, except such as have been already made or
obtained under the 1933 Act, the 1933 Act Regulations, the 1939 Act and
the 1939 Act Regulations or as may be required under state securities
laws.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them and the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to possess or comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not, singly or in the aggregate, have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) INVESTMENT COMPANY ACT. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xix) PARTNERSHIP AGREEMENTS. Each of the partnership and, if
applicable, joint venture agreements to which the Company or any of its
subsidiaries is a party has been duly authorized, executed and delivered
by the Company or the relevant subsidiary, as the case may be, and
constitutes the valid and binding agreement of the Company or such
subsidiary, as the case may be, enforceable in accordance with its terms,
except as the enforcement thereof may be limited by (A) the effect of
bankruptcy, insolvency or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally or (B) the effect of
general principles of equity, and the execution, delivery and performance
of such agreements did not, at the time of execution and delivery, and
does not constitute a breach of or default under the charter or bylaws or
partnership agreement, as the case may be, of the Company or any of its
subsidiaries or any of the Agreements and Instruments or any law,
administrative regulation or administrative or court order or decree.
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(xx) PROPERTIES. Except as otherwise disclosed in the
Prospectus: (i) the Company and its subsidiaries have good and marketable
title (either in fee simple or pursuant to a valid leasehold interest) to
all properties and assets described in the Prospectus as being owned or
leased, as the case may be, by them and to all properties reflected in
the Company's most recent consolidated financial statements included in
the Prospectus, and neither the Company nor any of its subsidiaries has
received notice of any claim that has been or may be asserted by anyone
adverse to the rights of the Company or any subsidiary with respect to
any such properties or assets (or any such lease) or affecting or
questioning the rights of the Company or any such subsidiary to the
continued ownership, lease, possession or occupancy of such property or
assets, except for such claims that would not, singly or in the
aggregate, have a Material Adverse Effect; (ii) all liens, charges,
encumbrances, claims or restrictions on or affecting the properties and
assets of the Company or any of its subsidiaries which are required to be
disclosed in the Registration Statement or the Prospectus are disclosed
therein, and all such liens, charges, encumbrances, claims or
restrictions which are not disclosed in the Prospectus could not
reasonably be expected, singly or in the aggregate, to have a Material
Adverse Effect; (iii) no person or entity, including, without limitation,
any tenant under any of the leases pursuant to which the Company or any
of its subsidiaries leases (as lessor) any of its properties (whether
directly or indirectly through other partnerships, joint ventures or
otherwise) has an option or right of first refusal or any other right to
purchase any of such properties, except for such options, rights of first
refusal or other rights to purchase which, individually or in the
aggregate, are not material with respect to the Company and its
subsidiaries considered as one enterprise; (iv) to the Company's best
knowledge, each of the properties of the Company or any of its
subsidiaries has access to public rights of way, either directly or
through insured easements, except where the failure to have such access
would not, singly or in the aggregate, have a Material Adverse Effect;
(v) to the Company's best knowledge, each of the properties of the
Company or any of its subsidiaries is served by all public utilities
necessary for the current operations on such property in sufficient
quantities for such operations, except where the failure to have such
public utilities would not, singly or in the aggregate, have a Material
Adverse Effect; (vi) to the best knowledge of the Company, each of the
properties of the Company or any of its subsidiaries complies with all
applicable codes and zoning and subdivision laws and regulations, except
for such failures to comply which would not, either individually or in
the aggregate, have a Material Adverse Effect; (vii) all of the leases
under which the Company or any of its subsidiaries holds or uses any real
property or improvements or any equipment relating to such real property
or improvements are in full force and effect, except where the failure to
be in full force and effect would not, singly or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries is in default in the payment of any amounts due under any
such leases or in any other default thereunder and the Company knows of
no event which, with the passage of time or the giving of notice or both,
would constitute a default under any such lease,
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except such defaults that would not, individually or in the aggregate,
have a Material Adverse Effect; (viii) to the best knowledge of the
Company, there is no pending or threatened condemnation, zoning change,
or other proceeding or action that could in any manner affect the size
of, use of, improvements on, construction on or access to the properties
of the Company or any of its subsidiaries, except such proceedings or
actions that, either singly or in the aggregate, would not have a
Material Adverse Effect; and (ix) neither the Company nor any of its
subsidiaries nor any lessee of any of the real property or improvements
of the Company or any of its subsidiaries is in default in the payment of
any amounts due or in any other default under any of the leases pursuant
to which the Company or any of its subsidiaries leases (as lessor) any of
its real property or improvements (whether directly or indirectly through
partnerships, joint ventures or otherwise), and the Company knows of no
event which, with the passage of time or the giving of notice or both,
would constitute such a default under any of such leases, except such
defaults as would not, individually or in the aggregate, have a Material
Adverse Effect.
(xxi) INSURANCE. With such exceptions as would not,
individually or in the aggregate, have a Material Adverse Effect, the
Company and its subsidiaries have title insurance on all real property
and improvements described in the Prospectus as being owned or leased
under a ground lease, as the case may be, by them and to all real
property and improvements reflected in the Company's most recent
consolidated financial statements included in the Prospectus in an amount
at least equal to the original cost of acquisition and the Company and
its subsidiaries are entitled to all benefits of the insured thereunder,
and each such property is insured by extended coverage hazard and
casualty insurance in amounts and on such terms as are customarily
carried by lessors of properties similar to those owned by the Company
and its subsidiaries (in the markets in which the Company's and
subsidiaries' respective properties are located), and the Company and its
subsidiaries carry comprehensive general liability insurance and such
other insurance as is customarily carried by lessors of properties
similar to those owned by the Company and its subsidiaries in amounts and
on such terms as are customarily carried by lessors of properties similar
to those owned by the Company and its subsidiaries (in the markets in
which the Company's and its subsidiaries' respective properties are
located) and the Company or one of its subsidiaries is named as an
additional insured on all policies required under the leases for such
properties.
(xxii) ENVIRONMENTAL MATTERS. Except as otherwise disclosed in
the Prospectus: (i) all real property and improvements owned or leased
by the Company or any of its subsidiaries, including, without limitation,
the Environment (as defined below) associated with such real property and
improvements, is free of any Contaminant (as defined below), except such
Contaminants which, individually or in the aggregate, would not have a
Material Adverse Effect; (ii) neither the Company, nor any of its
subsidiaries nor any
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Partnership has caused or suffered to exist or occur any Release (as
defined below) of any Contaminant into the Environment or any other
condition that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or could result in any
violation of any Environmental Laws (as defined below) or constitute a
health, safety or environmental hazard to any person or property except
for such violations or hazards that could not reasonably be expected to
have a Material Adverse Effect; (iii) neither the Company nor any of its
subsidiaries is aware of any notice from any governmental body claiming
any violation of any Environmental Laws or requiring or calling attention
to the need for any work, repairs, construction, alterations, removal or
remedial action or installation on or in connection with such real
property or improvements, whether in connection with the presences of
asbestos-containing materials in such properties or otherwise, except for
such violations, work, repairs, construction, alterations, removal or
remedial actions or installations as would not, individually or in the
aggregate, have a Material Adverse Effect; (iv) any such work, repairs,
construction, alterations, removal or remedial action or installation, if
required, would not result in the incurrence of liabilities, which,
individually or in the aggregate, would have a Material Adverse Effect;
(v) neither the Company nor any of its subsidiaries has caused or
suffered to exist or occur any condition on any of the properties or
improvements of the Company or any of its subsidiaries that could give
rise to the imposition of any Lien (as defined below) under any
Environmental Laws, except such Liens which, individually or in the
aggregate, would not have a Material Adverse Effect; and (vi) to the
Company's best knowledge, no real property or improvements owned or
leased by the Company or any of its subsidiaries is being used or has
been used for manufacturing or for any other operations that involve or
involved the use, handling, transportation, storage, treatment or
disposal of any Contaminant, where such operations require or required
permits or are or were otherwise regulated pursuant to the Environmental
Laws and where such permits have not been or were not obtained or such
regulations are not being or were not complied with, except in all
instances where any failure to obtain a permit or comply with any
regulation could not reasonably be expected, singly or in the aggregate,
to have a Material Adverse Effect. "Contaminant" means any pollutant,
hazardous substance, toxic substance, hazardous waste, special waste,
petroleum or petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, lead, pesticides or radioactive
materials or any constituent of any such substance or waste, including
any such substance identified or regulated under any Environmental Law.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 ET SEQ., the Resource
Conservation and Recovery Act, 42 U.S.C. 6901, ET SEQ., the Clean Air
Act, 42 U.S.C. 7401, ET SEQ., the Clean Water Act, 33 U.S.C. 1251, ET
SEQ., the Toxic Substances Control Act, 15 U.S.C. 2601, ET SEQ., the
Occupational Safety and Health Act, 29 U.S.C. 651, ET SEQ., and all other
federal, state and local laws, ordinances, regulations, rules, orders,
decisions, permits, and the like, which are directed at the protection of
human health or the Environment.
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"Lien" means, with respect to any asset, any mortgage, deed of trust,
lien, pledge, encumbrance, charge or security interest in or on such
asset. "Environment" means any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air. "Release" means any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, emanating or disposing of any
Contaminant into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks or other receptacles
containing or previously containing any Contaminant or any release,
emission or discharge as those terms are defined or used in any
Environmental Law.
(xxiii) QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST. The
Company was and is organized in conformity with the requirements for
qualification and taxation as a "real estate investment trust" under the
Internal Revenue Code of 1986, as amended (the "Code"); the Company at
all times has met and continues to meet all the requirements of the Code
for qualification and taxation as a "real estate investment trust"; the
Company's method of operation will enable it to meet the requirements for
qualification and taxation as a "real estate investment trust" under the
Code; and the Company is qualified as a "real estate investment trust"
under the Code and will be so qualified for the taxable year in which
sales of the Securities occur.
(xxiv) REGISTRATION RIGHTS. There are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act, or included in the offering contemplated
hereby.
(xxv) TAX TREATMENT OF CERTAIN ENTITIES. Each of R.I.C. Trade
Center, Ltd., Empire Business Center, Ltd., and Silverton Business
Center, Ltd., each a California limited partnership (the "Sub-Limited
Partnerships"), was, from the time of the Consolidation through and
including the time of its merger into the Company, treated as a
partnership (rather than as an association taxable as a corporation) for
federal income tax purposes. The Company's ownership interests in three
properties held through tenancies in common with unrelated third parties
(which are the only properties which, since the Consolidation, have been
held in tenancies in common with unrelated third parties) have not been,
since the Consolidation, and will not be treated as ownership interests
in associations taxable as corporations for federal income tax purposes.
Realty Income Texas Properties, L.P., a Delaware limited partnership, is
not and has never been treated as an association taxable as a corporation
for federal income tax purposes. Realty Income Texas Properties, Inc., a
Delaware corporation, is and has been at all times treated as a
"qualified REIT subsidiary" within the meaning of Section 856(i) of the
Code.
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(xxvi) INDENTURE. The Indenture has been duly authorized by the
Company and duly qualified under the 1939 Act and, at the Closing Time
(and, if any Option Securities are purchased, at each Date of Delivery),
will have been duly executed and delivered by the Company and will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditor's rights generally or by general equitable principles.
(xxvii) SECURITIES. The Securities have been duly authorized
and, at the Closing Time (and, if any Option Securities are purchased, at
each Date of Delivery), will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor specified in
this Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally or by general equitable
principles, and will be entitled to the benefits of the Indenture.
(xxviii) DESCRIPTION OF INDENTURE AND SECURITIES. The
Securities and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Prospectus and
will be in substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration Statement.
(xxix) RANKING OF SECURITIES. The Securities rank and will rank
on a parity with all unsecured indebtedness of the Company (other than
subordinated indebtedness of the Company) that is outstanding on the date
hereof or that may be incurred hereafter, and senior to all subordinated
indebtedness of the Company that is outstanding on the date hereof or
that may be incurred hereafter.
(xxx) REINCORPORATION. The Reincorporation (a) qualified as a
reorganization under Section 368(a)(1)(F) of the Code or (b) was a
non-event for federal income tax purposes, and no gain or loss was or
will be recognized by the Company for federal income tax purposes as a
result of the Reincorporation.
(xxxi) PRIOR REGISTRATION STATEMENT. All of the securities
previously registered by the Company under its registration statement on
Form S-3 (No. 33-95374), as amended, have been issued and sold.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer
of the Company and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
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SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) INITIAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price set forth in Schedule B, the aggregate
principal amount of Initial Securities set forth in Schedule A opposite the
name of such Underwriter, plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) OPTION SECURITIES. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
$15,000,000 aggregate principal amount of Notes at the price set forth in
Schedule B. The option hereby granted may be exercised through and including
the 30th day after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
Securities upon notice by the Representatives to the Company setting forth
the number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior
to the Closing Time. If the option is exercised as to all or any portion of
the Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total aggregate principal
amount of Option Securities then being purchased which the aggregate
principal amount of Initial Securities set forth in Schedule A opposite the
name of such Underwriter bears to the aggregate principal amount of all of
the Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the office of Latham &
Watkins, 650 Town Center Drive, 20th Floor, Costa Mesa, California
92626-1925, or at such other place as shall be agreed upon by the
Representatives and the Company, at 6:00 A.M. (California time) on the third
(fourth, if the pricing occurs after 4:30 P.M. New York City time, on any
given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being herein
called "Closing Time").
In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price
for, and delivery of certificates for, such Option Securities shall be made
at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Company, on each Date of Delivery as
specified in the notice from the Representatives to the Company.
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Payment shall be made to the Company by wire transfer of
immediately available funds to an account at a bank designated by the
Company, against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by
them. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Initial Securities and the Option
Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the Initial
Securities and the Option Securities, if any, to be purchased by any
Underwriter whose payment therefor has not been received by the Closing Time
or the relevant Date of Delivery, as the case may be, but such payment shall
not relieve such Underwriter from its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations
and registered in such names as the Representatives may request in writing at
least one full business day before the Closing Time or the relevant Date of
Delivery, as the case may be. The certificates for the Initial Securities
and the Option Securities, if any, will be made available for examination and
packaging by the Representatives in The City of New York not later than 2:00
P.M. (New York City time) on the business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will notify the Representatives
immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement or any Rule 462(b)
Registration Statement shall become effective or any supplement to the
Prospectus, any Term Sheet or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration
Statement or any Rule 462(b) Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus, or of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule
424(b) and, if applicable, will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus supplement, prospectus
or term sheet transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus supplement, prospectus or term sheet, as
the case may be. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
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(b) FILING OF AMENDMENTS. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall object.
(c) RULE 434. If the Company uses Rule 434, it will comply with the
requirements of such Rule.
(d) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, as many signed and conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) as the
Representatives and counsel for the Underwriters may reasonably request.
If applicable, the copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, if any, except to the extent permitted by Regulation
S-T.
(e) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. If applicable,
the Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, if any, except to the
extent permitted by Regulation S-T.
(f) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the Prospectus.
If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that
the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances
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existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of any such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order
to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company
will furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(g) BLUE SKY QUALIFICATIONS. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Representatives may
designate and to maintain such qualifications in effect for a period of not
less than one year from the date hereof; PROVIDED, HOWEVER, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
date hereof.
(h) RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
security holders as soon as practicable an earning statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(i) USE OF PROCEEDS. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(j) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(k) LISTING. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange (the "NYSE").
(l) RESTRICTION ON SALE OF SECURITIES. During a period of 90 days
from the date of this Agreement, the Company will not, without the prior
written consent of Merrill Lynch, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any Securities or
substantially similar securities of the Company or any securities
convertible into, or exercisable or
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exchangeable for, any of the foregoing, or file any registration statement
under the 1933 Act with respect to any of the foregoing, or (ii) enter into
any swap or any other agreement or transaction that transfers, in whole or
in part, directly or indirectly, the economic consequence of ownership of
any Securities or substantially similar securities of the Company, whether
any such swap, agreement or transaction described in clause (i) or (ii)
above is to be settled by delivery of Securities, other securities, in cash
or otherwise, other than the Securities sold to the Underwriters pursuant
to this Agreement.
SECTION 4. PAYMENT OF EXPENSES
(a) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the word
processing, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the printing and delivery to the Underwriters of this
Agreement, the Indenture, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters,
including any transfer taxes or other duties payable upon the sale of the
Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(g) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheet and the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto,
(viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) if required, the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters (such fees and
disbursements not to exceed $10,000) in connection with, the review, if any,
by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Securities, (x) the fees and expenses of the
Trustee, including, if required, the fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Securities, (xi) any
fees payable in connection with the rating of the Securities or in connection
with any listing of the Securities on a securities exchange and (xii) and the
fees and expenses of any depositary in connection with holding the Securities
in book-entry form.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or
Section 9(a)(i) or 9(a)(v) hereof, the Company shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters hereunder are subject to the accuracy
of the representations and warranties of the Company contained in Section 1
hereof or in certificates of any officer of the Company or any subsidiary of
the Company delivered pursuant to the provisions hereof, to the performance
by the
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Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective not later than 5:30 P.M. on the date hereof and at Closing Time
(and, if any Option Securities are purchased, at the relevant Date of
Delivery) no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. If required by the 1933 Act or the 1933 Act
Regulations, the Prospectus shall have been filed with the Commission in
accordance with Rule 424(b) and, if the Company has elected to rely upon
Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 434 and Rule 424(b).
(b) OPINIONS OF COUNSEL FOR COMPANY. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of
Closing Time, of Latham & Watkins, counsel for the Company, Michael R.
Pfeiffer, Senior Vice President, General Counsel and Secretary of the
Company, and Ballard Spahr Andrews & Ingersoll, special Maryland counsel to
the Company, each in form and substance satisfactory to counsel for the
Underwriters, to the effect set forth in Exhibits A, B and C hereto,
respectively, and to such further effect as counsel to the Underwriters may
reasonably request pursuant to Section 5(i).
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Brown & Wood LLP, counsel for the Underwriters, with
respect to the matters set forth in clauses (iii), (iv), (xiv), (xv)and the
antepenultimate paragraph of Exhibit A and clauses (iii), (vii) and (viii)
of Exhibit C. In giving such opinion such counsel may rely, as to all
matters arising under or governed by the laws of the State of Maryland,
upon the opinion of Ballard Spahr Andrews & Ingersoll delivered pursuant to
Section 5(b) and, as to all matters governed by the laws of other
jurisdictions (other than the law of the State of New York and the federal
law of the United States) upon the opinions of counsel satisfactory to you.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the Chairman or
the President of the Company and of the chief financial or chief accounting
officer of the Company,
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dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section
1 hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued and no proceedings for that
purpose have been initiated or, to the best of their knowledge, threatened
by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of
this Agreement, the Representatives shall have received from KPMG Peat
Marwick LLP a letter dated such date, in form and substance satisfactory to
the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements, and
certain financial information contained in the Registration Statement and
the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time the Representatives
shall have received from KPMG Peat Marwick LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section, except that
the specified date referred to shall be a date not more than three business
days prior to Closing Time.
(g) RATING REQUIREMENT. At the date of this Agreement and at the
Closing Time, the Securities shall be rated at least Baa3 by Moody's
Investor's Service Inc., BBB- by Standard & Poor's Corporation and BBB by
Duff & Phelps, and the Company shall have delivered to the Representatives
a letter, dated the Closing Time, from each such rating agency, or other
evidence satisfactory to the Representatives, confirming that the
Securities have such ratings.
(h) LETTER REGARDING COMPLIANCE WITH THE ACQUISITION CREDIT
AGREEMENT. Prior to the date of this Agreement, the Representatives shall
have received a letter, executed by Agent (as defined in the Acquisition
Credit Agreement) to the effect that the Agent has reviewed the preliminary
prospectus relating to the Securities or the Prospectus and has determined
that the agreements and covenants entered into the connection with the
Securities and the Indenture are no more restrictive on the Company than
the agreements and covenants in the Acquisition Credit Agreement.
(i) APPROVAL OF LISTING. At the Closing Time, the Securities shall
have been approved for listing on the New York Stock Exchange, subject only
to official notice of issuance.
(j) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any
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of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(k) CONDITIONS TO PURCHASE OF OPTION SECURITIES. In the event that
the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company hereunder shall be true and correct
as of each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of the Chairman or President of the Company and of the chief
financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
(ii) OPINIONS OF COUNSEL FOR COMPANY. The favorable opinions
of Latham & Watkins, counsel for the Company, Michael R. Pfeiffer,
Senior Vice President, General Counsel and Secretary of the Company and
Ballard Spahr Ingersoll & Andrews, special Maryland counsel to the
Company, each in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the respective opinions required by Section 5(b)
hereof.
(iii) OPINION OF COUNSEL FOR UNDERWRITERS. The favorable
opinion of Brown & Wood LLP, counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(iv) BRING-DOWN COMFORT LETTER. A letter from KPMG Peat
Marwick LLP, in form and substance satisfactory to the Representatives
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Representatives pursuant to
Section 5(f) hereof, except that the specified date referred to shall
be a date not more than three business days prior to such Date of
Delivery.
(l) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities on a Date of Delivery which occurs after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery,
as the case
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may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections
6 and 7 shall survive any such termination and remain in full force and
effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 434 Information,
if applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill Lynch),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); and
PROVIDED FURTHER that this indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, liabilities, claims, damages or
expenses purchased Securities, or any person controlling such Underwriter, if
a copy of the
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Prospectus (as then amended or supplemented if the Company shall have
furnished any such amendments or supplements thereto, but excluding documents
incorporated or deemed to be incorporated by reference therein) was not sent
or given by or on behalf of such Underwriter to such person, if such is
required by law, at or prior to the written confirmation of the sale of such
Securities to such person and if the Prospectus (as so amended or
supplemented, if applicable) would have corrected the defect giving rise to
such loss, liability, claim, damage or expense, except that this proviso
shall not be applicable if such defect shall have been corrected in a
document which is incorporated or deemed to be incorporated by reference in
the Prospectus.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through Merrill Lynch expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation,
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investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus (or, if Rule 434 is used, the
corresponding location on the Term Sheet) bear to the aggregate initial public
offering price of the Securities as set forth on such cover (or corresponding
location on the Term Sheet, as the case may be).
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation
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which does not take account of the equitable considerations referred to above
in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or
in certificates of officers of the Company submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Company, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(and, if any Option Securities are purchased, at any time at or prior to the
relevant Date of Delivery, with respect to the obligation of the Underwriters
to purchase such Option Securities) (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity
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<PAGE>
or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or limited by the Commission, the New York Stock
Exchange or the Nasdaq National Market, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market
has been suspended or limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal, California or
New York authorities, or (v) if since the date of this Agreement, there has
occurred a downgrading in the rating assigned to the Securities or any of the
Company's other debt securities by any nationally recognized securities rating
agency, or such securities rating agency has publicly announced that it has
under surveillance or review, with possible negative implications or without
indicating the direction of the possible change, its rating of the Securities
or any of the Company's other debt securities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of the Defaulted Securities
not exceed 10% of the aggregate principal amount of the Securities,
of the non-defaulting Underwriters shall be obligated, severally and
ointly, to purchase the full amount thereof in the proportions that
respective underwriting obligations hereunder bear to the
writing obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of the Defaulted Securities
ds 10% of the aggregate principal amount of the Securities to be
ased hereunder on such date, this Agreement or, with respect to any
of Delivery which occurs after the Closing Time, the obligations of
nderwriters to purchase and of the Company to sell the Option
ities to be purchased and sold on such Date of Delivery shall
nate without liability on the part of any non-defaulting Underwriter.
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No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligations of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone the Closing Time or the relevant Date of Delivery, as the case
may be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at 10877 Wilshire
Boulevard, Suite 900, Los Angeles, California 90024, attention of Paul M.
Meurer; and notices to the Company shall be directed to it at Realty Income
Corporation, 220 West Crest Street, Escondido, California 92025-1725, attention
of Legal Department.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT 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 IN SAID STATE. EXCEPT AS OTHERWISE SET
FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. 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.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
REALTY INCOME CORPORATION
By: /s/ Richard J. VanDerhoff
------------------------------------
Richard J. VanDerhoff
President and Chief Operating Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
A.G. EDWARDS & SONS, INC.
PAINEWEBBER INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
EVEREN SECURITIES, INC.
SUTRO & CO. INCORPORATED
WHEAT FIRST SECURITIES, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Paul M. Meurer
--------------------------------------
Authorized Signatory
For themselves and as Representatives of the
Underwriters named in Schedule A hereto.
29
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Name of Underwriter Aggregate
--------------------- Principal
Amount of
Securities
------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . . $ 23,500,000
A.G. Edwards & Sons, Inc. . . . . . . . . . . . . . . . . . . 22,250,000
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . 22,250,000
Donaldson, Lufkin & Jenrette Securities Corporation . . . . . 5,000,000
EVEREN Securities, Inc. . . . . . . . . . . . . . . . . . . . 5,000,000
Sutro & Co. Incorporated . . . . . . . . . . . . . . . . . . 5,000,000
Wheat First Securities, Inc. . . . . . . . . . . . . . . . . 5,000,000
ABN AMRO Incorporated . . . . . . . . . . . . . . . . . . . . 1,000,000
BT Alex. Brown Incorporated . . . . . . . . . . . . . . . . . 1,000,000
Bear, Stearns & Co. Inc. . . . . . . . . . . . . . . . . . . 1,000,000
CIBC Oppenheimer Corp. . . . . . . . . . . . . . . . . . . . 1,000,000
Dain Rauscher Wessels . . . . . . . . . . . . . . . . . . . . 1,000,000
Fleet Securities, Inc. . . . . . . . . . . . . . . . . . . . 1,000,000
Legg Mason Wood Walker, Incorporated. . . . . . . . . . . . . 1,000,000
OLDE Discount Corporation . . . . . . . . . . . . . . . . . . 1,000,000
Piper Jaffray Inc. . . . . . . . . . . . . . . . . . . . . . 1,000,000
Raymond James & Associates, Inc. . . . . . . . . . . . . . . 1,000,000
SG Cowen Securities Corporation . . . . . . . . . . . . . . . 1,000,000
Tucker Anthony Incorporated . . . . . . . . . . . . . . . . . 1,000,000
------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
------------
------------
</TABLE>
Sch A - 1
<PAGE>
SCHEDULE B
PRICE SCHEDULE
1. The initial public offering price for the Securities shall
be 100% of the principal amount thereof, plus accrued interest from October 28,
1998.
2. The underwriting discount for the Securities shall be 3.5%
of the principal amount thereof. Accordingly, the purchase price to be paid
for the Securities by the several Underwriters shall be 96.5% of the principal
amount thereof.
Sch B-1
<PAGE>
Exhibit A
FORM OF OPINION OF LATHAM & WATKINS
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) Based solely on certificates from public officials, the Company
is duly qualified as a foreign corporation to transact business and is in good
standing in the State of California.
(ii) None of the outstanding shares of stock of the Company was
issued, to the best of our knowledge and information, in violation of preemptive
rights or other similar rights arising under any agreement or instrument to
which the Company or any of its subsidiaries is a party.
(iii) Each of the Registration Statement and any Rule 462(b)
Registration Statement has been declared effective under the 1933 Act; to the
best of our knowledge and information, the Prospectus has been filed pursuant to
Rule 424(b) under the 1933 Act in the manner and within the time period required
by Rule 424(b); and, to the best of our knowledge and information, no stop order
suspending the effectiveness of either the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(iv) Each of the Registration Statement, any Rule 462(b) Registration
Statement and the Prospectus (in each case excluding the documents incorporated
or deemed to be incorporated by reference therein and the financial statements,
supporting schedules and other financial data included or incorporated by
reference therein and excluding any Statement of Eligibility on Form T-1 (a
"Form T-1"), as to which no opinion need be rendered), as of their respective
effective or issue dates, complied as to form in all material respects with the
applicable requirements of the 1933 Act and the 1933 Act Regulations.
(v) The documents incorporated or deemed to be incorporated by
reference in the Prospectus (other than the financial statements, supporting
schedules and other financial data therein, as to which no opinion need be
rendered), when they were filed with the Commission, complied as to form in all
material respects with the applicable requirements of the 1934 Act and the 1934
Act Regulations.
(vi) The information in the Prospectus under "Certain Federal Income
Tax Considerations" and the information in the Company's 1997 Form 10-K under
"Business--Other Items--Taxation of the Company" and "Business--Other
Items--Effect of Distribution Requirements," in each case to the extent that it
constitutes matters of law, summaries of legal matters or legal conclusions, has
been reviewed by us and is correct in all material respects.
(vii) No authorization, approval, consent or order of any federal, New
York or California state governmental authority or agency (other than under the
1933 Act, the 1933
A-1
<PAGE>
Act Regulations, the 1939 Act and 1939 Act Regulations, which
have been obtained, or as may be required under the securities or blue sky laws
of the various states, as to which we express no opinion) is required in
connection with the due authorization, execution or delivery of the Purchase
Agreement, the Indenture or the Securities or for the offering, issuance or sale
of the Securities;
(viii) The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities by the Company (including the
issuance and sale of the Securities as described in the Prospectus under the
caption "Use of Proceeds") will not, whether with or without the giving of
notice or lapse of time or both, constitute a breach or violation of, or default
or Repayment Event under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, the Acquisition Credit Agreement or the Indenture
dated as of May 6, 1997 between the Company and the Bank of New York, as
trustee, nor to the best of our knowledge and information, any applicable
provision of any federal or State of California law, statute, administrative
regulation or administrative or court decree applicable to the Company.
(ix) The Company is not an "investment company" as such term is
defined in the 1940 Act.
(x) Commencing with the Company's taxable year ended December 31,
1994, the Company has been organized in conformity with the requirements for
qualification and taxation as a real estate investment trust under the Code and
its proposed method of operation will enable the Company to meet the
requirements for qualification and taxation as a real estate investment trust
under the Code.
(xi) Realty Income Texas Properties, L.P., a Delaware limited
partnership, is not and has never been treated as an association taxable as a
corporation for federal income tax purposes. Realty Income Texas Properties,
Inc., a Delaware corporation, is and has, at all times during its existence,
been treated as a "qualified REIT subsidiary" within the meaning of Section
856(i) of the Code.
(xii) Assuming the due authorization, execution and delivery of the
Indenture by the Company under the laws of the State of Maryland and the due
authorization, execution and delivery of the Indenture by the Trustee, the
Indenture constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles.
(xiii) Assuming the due authorization and execution of the Securities by
the Company under the laws of the State of Maryland, the Securities, when
authenticated by the Trustee in the manner provided in the Indenture (assuming
the due authorization, execution and delivery of the Indenture by the Trustee)
and delivered against payment of the purchase price therefor specified in the
Purchase Agreement, the Securities will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms
and
A-2
<PAGE>
will be entitled to the benefits of the Indenture, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditor's rights generally or by
general equitable principles, and will be entitled to the benefits of the
Indenture.
(xiv) The Indenture has been qualified under the 1939 Act.
(xv) The Securities and the Indenture conform in all material respects
to the descriptions thereof contained in the Prospectus.
Although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and have not made any independent
judgment, check or verification thereof (except with respect to the opinion set
forth in paragraphs (vi), (x), (xi), and (xv) hereof), we have, however,
participated in conferences with certain officers and other representatives of
the Company, representatives of KPMG Peat Marwick LLP and your representatives
at which the Registration Statement, any Rule 462(b) Registration Statement and
the Prospectus (including, in each case, the documents incorporated or deemed to
be incorporated by reference therein) and any amendments or supplements to any
of the foregoing and related matters were discussed, and in the course of such
conferences (relying in connection with questions of materiality on
representations of factual matters of officers and other representatives of the
Company), nothing has come to our attention which has led us to believe that the
Registration Statement, any Rule 462(b) Registration Statement or any amendment
thereto (except for the financial statements, supporting schedules and other
financial data included therein and any Form T-1, as to which we express no
belief), as of the time the Registration Statement, any such Rule 462(b)
Registration Statement or any such post-effective or other amendment thereto
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any amendment or
supplement thereto (except for the financial statements, supporting schedules
and other financial data included therein, as to which we express no belief), as
of October 23, 1998 or as of the Closing Time (or, if applicable, as of the
relevant Date of Delivery), contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely insofar as such opinion
involves factual matters, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall
not state that it is to be governed or qualified by, or that it is otherwise
subject to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
Such opinion shall state that, insofar as it concerns the Indenture and the
Securities, such counsel has assumed that the Indenture and the Securities are
governed by the laws of the State of California.
A-3
<PAGE>
The matters set forth in (vi), (x) and (xi) above may be covered in one or
more separate legal opinions, which may be subject to such assumptions,
limitations and qualifications as shall be satisfactory to counsel for the
Underwriters. In particular, the opinions set forth in paragraphs (vi), (x) and
(xi) above (the "Tax Opinions") may be conditioned upon certain representations
made by the Company as to factual matters through a certificate of an officer of
the Company (the "Officer's Certificate"). In addition, the Tax Opinions may be
based upon the factual representations of the Company concerning its business
and properties as set forth in the Registration Statement and Prospectus. The
Tax Opinions may state that they relate only to the federal income tax laws of
the United States and such counsel need not express any opinion with respect to
the applicability thereto, or the effect thereon, of other federal laws, the
laws of any state or other jurisdiction or as to any matters of municipal law or
the laws of any other local agencies within any state. The Tax Opinions may
state that they are based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively, that any such change
may affect the conclusions stated therein, and that any variation or difference
in the facts from those set forth in the Registration Statement, the Prospectus
or the Officer's Certificate may affect the conclusions stated therein.
Moreover, the Tax Opinions may state that the Company's qualification and
taxation as a real estate investment trust depends upon the Company's ability to
meet (through actual annual operating results, distribution levels and diversity
of stock ownership) the various qualification tests imposed under the Code, the
results of which have not been and will not be reviewed by such counsel, and,
accordingly, no assurance can be given that the actual results of the Company's
operation for any one taxable year will satisfy such requirements.
A-4
<PAGE>
Exhibit B
FORM OF OPINION OF MICHAEL R. PFEIFFER
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not have a Material Adverse Effect.
(ii) The only subsidiaries of the Company are Realty Income Texas
Properties, L.P., a Delaware limited partnership and Realty Income Texas
Properties, Inc., a Delaware corporation. Each of Realty Income Texas
Properties, L.P. and Realty Income Texas Properties, Inc. has been duly
organized and is validly existing as a partnership or corporation, as the case
may be, in good standing under the laws of the State of Delaware, has power and
authority as a partnership or corporation, as the case may be, to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and each such subsidiary is duly qualified as a foreign
partnership or corporation, as the case may be, to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; and all of the issued
and outstanding partnership interests and shares of capital stock, as the case
may be, of each of Realty Income Texas Properties, L.P. and Realty Income Texas
Properties, Inc. have been duly authorized (if applicable) and validly issued,
are fully paid and non-assessable (except to the extent that the general
partners of Realty Income Texas Properties, L.P. may be liable for the
obligations of such partnership) and, to the best of my knowledge and
information, are owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(iii) The information in the Company's annual report on Form 10-K
for the fiscal year ended December 31, 1997 under "Business--Other
Items--Environmental Liabilities," to the extent that it constitutes matters of
law, summaries of legal matters, instruments or agreements or legal proceedings,
or legal conclusions, has been reviewed by me and is correct in all material
respects.
(iv) To the best of my knowledge and information, there is not pending
or threatened any action, suit, proceeding, inquiry or investigation to which
the Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court or
governmental agency or authority, which could reasonably be expected to result
in a Material Adverse Effect, or which could reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the Purchase Agreement or the performance by the Company of its
obligations under the Purchase Agreement, the Indenture or the Securities.
B-1
<PAGE>
(v) All descriptions in the Prospectus of leases, contracts and other
documents to which the Company or any subsidiary is a party are accurate in all
material respects.
(vi) To the best of my knowledge and information, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described in the Registration Statement or to
be filed as exhibits thereto other than those described therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(vii) To the best of my knowledge and information, neither the
Company nor any of its subsidiaries is in violation of its charter or bylaws or
its partnership agreement, as applicable, and no default by the Company or any
of its subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(viii) The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities by the Company (including the
issuance and sale of the Securities to the Underwriters and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") and compliance by the Company with its
obligations under the Purchase Agreement, the Indenture and the Securities will
not, whether with or without the giving of notice or lapse of time or both,
constitute a breach or violation of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to me, to which the Company or
any of its subsidiaries is a party or by which it or any of them may be bound or
to which any of the property or assets of the Company or any of its subsidiaries
is subject, except for such breaches, violations or defaults or liens, charges
or encumbrances that, individually or in the aggregate, would not have a
Material Adverse Effect, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or the partnership agreement
or charter or bylaws, as the case may be, of any of its subsidiaries, or, to the
best of my knowledge and information, any applicable provision of any law,
statute or administrative regulation of the State of California, or, to the best
of my knowledge and information, any judgment, order, writ or decree of any
government instrumentality or court, domestic or foreign, applicable to the
Company or any of its subsidiaries or any of their respective properties, assets
or operations.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent he deems proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall
not state that it is to be governed or qualified by, or that it is otherwise
subject to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
B-2
<PAGE>
Exhibit C
FORM OF OPINION OF BALLARD SPAHR INGERSOLL & ANDREWS LLP
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing
under the laws of the State of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland. The Company has the
corporate power to own, lease and operate its current properties and to conduct
its business as described in the Prospectus and to enter into and perform its
obligations under the Purchase Agreement, the Indenture and the Securities.
(ii) The authorized, issued and outstanding stock of the Company is as
set forth in the line items "Preferred Stock" and "Common Stock" under the
caption "Capitalization" in the Prospectus (except for subsequent issuances
pursuant to employee benefit plans or the exercise of options referred to in the
Prospectus and retirement by the Company of 20,279 shares of common stock on
August 14, 1998). The shares of issued and outstanding Common Stock (the
"Outstanding Shares") have been duly authorized and validly issued and are fully
paid and non-assessable and none of the Outstanding Shares was issued in
violation of preemptive rights arising under the Maryland General Corporation
Law (the "MGCL"), the charter or bylaws of the Company.
(iii) The Purchase Agreement and the Indenture have been duly
authorized, executed and delivered by the Company.
(iv) No authorization, approval, consent or order of any Maryland
state government authority or agency (other than as may be required under
Maryland securities or blue sky laws) is required in connection with the due
authorization, execution or delivery of the Purchase Agreement, the Indenture
and the Securities or for the offering, issuance or sale of the Securities;
(v) The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities by the Company (including the
issuance and sale of the Securities to the Underwriters and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") do not result in any violation of the provisions
of the charter or bylaws or, so far as is known to such counsel, any applicable
provision of any Maryland law, statute, administrative regulation or
administrative or court decree applicable to the Company.
(vi) The Securities have been duly authorized and executed by the
Company and, when duly authenticated by the Trustee in the manner provided in
the Indenture (assuming the due authorization, execution and delivery of the
Indenture by the Trustee) and delivered against payment of the purchase price
therefor specified in the Purchase Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditor's
<PAGE>
rights generally or by general equitable principles, and will be entitled to
the benefits of the Indenture.
In rendering such opinion, such counsel shall state that each of Latham &
Watkins and Brown & Wood LLP, in rendering their opinions pursuant to the
Purchase Agreement, may rely upon such opinion of special Maryland counsel as to
all matters arising under or governed by the laws of the State of Maryland. In
addition, in rendering such opinion, such counsel may rely insofar as such
opinion involves factual matters, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
C-2
<PAGE>
EXHIBIT 4.1
FORM OF INDENTURE
REALTY INCOME CORPORATION
TO
THE BANK OF NEW YORK
TRUSTEE
INDENTURE
DATED AS OF OCTOBER 28, 1998
----------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . . . . . 9
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . . . . .10
SECTION 104. ACTS OF HOLDERS . . . . . . . . . . . . . . . . . . . .10
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY . . . . . . . . .12
SECTION 106. NOTICE TO HOLDERS; WAIVER . . . . . . . . . . . . . . .13
SECTION 107. COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS.14
SECTION 108. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . .14
SECTION 109. SEVERABILITY CLAUSE . . . . . . . . . . . . . . . . . .14
SECTION 110. BENEFITS OF INDENTURE . . . . . . . . . . . . . . . . .14
SECTION 111. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . .14
SECTION 112. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . .14
SECTION 113. IMMUNITY OF STOCKHOLDERS, DIRECTORS, OFFICERS AND
AGENTS OF THE COMPANY . . . . . . . . . . . . . . . . .15
SECTION 114. CONFLICT WITH TRUST INDENTURE ACT . . . . . . . . . . .15
ARTICLE TWO SECURITIES FORMS. . . . . . . . . . . . . . . . . . . .15
SECTION 201. FORMS OF SECURITIES . . . . . . . . . . . . . . . . . .15
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION . . . .16
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. . . . . . . . . . .16
ARTICLE THREE THE SECURITIES. . . . . . . . . . . . . . . . . . . . .17
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. . . . . . . . . .17
SECTION 302. DENOMINATIONS . . . . . . . . . . . . . . . . . . . . .21
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. . . . .21
SECTION 304. TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . .23
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE . .26
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. . . .29
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . .30
SECTION 308. PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . .32
SECTION 309. CANCELLATION. . . . . . . . . . . . . . . . . . . . . .33
SECTION 310. COMPUTATION OF INTEREST . . . . . . . . . . . . . . . .33
i
<PAGE>
ARTICLE FOUR SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . .33
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . .33
SECTION 402. APPLICATION OF TRUST FUNDS. . . . . . . . . . . . . . .35
ARTICLE FIVE REMEDIES. . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 501. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . .35
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . .37
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . .39
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS . . . . . . . . . . . . . . . . .40
SECTION 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . .40
SECTION 507. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . .40
SECTION 508. UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS. . . .41
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . .41
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . .42
SECTION 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . .42
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. . . . . . . . . . . .42
SECTION 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . .42
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS . . . . . . . .43
SECTION 515. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . .43
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . .44
SECTION 601. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . .44
SECTION 602. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . .44
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.45
SECTION 604. MAY HOLD SECURITIES . . . . . . . . . . . . . . . . . .46
SECTION 605. MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . .46
SECTION 606. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . .46
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR . . .47
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . .48
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. . . . . . . . . . . . . . . . . . . . . . . .49
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT . . . . . . . . . .50
ii
<PAGE>
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. . . . . . . . . . . . . . . . . . .52
SECTION 703. REPORTS BY COMPANY. . . . . . . . . . . . . . . . . . .52
SECTION 704. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS . . . . . . . . . . . . . . . . . . . . . . . .53
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE. . . .53
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN
CONDITIONS. . . . . . . . . . . . . . . . . . . . . . .53
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR ENTITY . . . . . . . . .54
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. . . . . .54
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. EXISTENCE . . . . . . . . . . . . . . . . . . . . . . .61
SECTION 1005. MAINTENANCE OF PROPERTIES . . . . . . . . . . . . . . .62
SECTION 1006. INSURANCE . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS . . . . . . . . . . .62
SECTION 1008. PROVISION OF FINANCIAL INFORMATION. . . . . . . . . . .62
SECTION 1009. STATEMENT AS TO COMPLIANCE. . . . . . . . . . . . . . .63
SECTION 1010. ADDITIONAL AMOUNTS. . . . . . . . . . . . . . . . . . .63
SECTION 1011. WAIVER OF CERTAIN COVENANTS . . . . . . . . . . . . . .64
ARTICLE ELEVEN REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . .64
SECTION 1101. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . .64
iii
<PAGE>
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE . . . . . . . . .64
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED . . .64
SECTION 1104. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . .65
SECTION 1105. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . .66
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE . . . . . . . . .67
SECTION 1107. SECURITIES REDEEMED IN PART . . . . . . . . . . . . . .68
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 . . . . . . .69
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. . . . . . . . . . . . . . . . . . .70
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1305. SECURITIES REPAID IN PART . . . . . . . . . . . . . . .72
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . .72
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE . . . . . . . . . . .72
SECTION 1402. DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . .72
SECTION 1403. COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . .73
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE . . . .73
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS. . . . . . . .75
SECTION 1406. REINSTATEMENT . . . . . . . . . . . . . . . . . . . . .76
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . .77
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED . . . . . . .77
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. . . . . . . . . . .77
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. . . . . . . . . .77
SECTION 1504. QUORUM; ACTION. . . . . . . . . . . . . . . . . . . . .78
SECTION 1505. DETERMINATION OF VOTING RIGHTS, CONDUCT AND
ADJOURNMENT OF MEETINGS . . . . . . . . . . . . . . . .79
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS . . . .79
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
Exhibit A-1 Form of Certification A-1
Exhibit A-2 Form of Certification A-2
</TABLE>
v
<PAGE>
REALTY INCOME CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939 Act") and
Indenture dated as of October 28, 1998.
----------------
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
--------------- ---------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . 607
(b). . . . . . . . . . . . . . . . . . . 607,608
Section 312 . . . . . . . . . . . . . . . . . 701
Section 313(a) . . . . . . . . . . . . . . . 702,703
(c). . . . . . . . . . . . . . . . . . . 702
Section 314(a) . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . 1009
(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>
THIS INDENTURE, dated as of October 28, 1998, between REALTY INCOME
CORPORATION, a Maryland corporation (the "Company"), having its principal
office at 220 West Crest Street, Escondido, California 92025-1725, and The
Bank of New York, a banking corporation organized under the laws the State of
New York, as Trustee hereunder (the "Trustee"), having its Corporate Trust
Office at 48 Wall Street, New York, New York 10286.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes debt securities (hereinafter called the "Securities") evidencing its
indebtedness, and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Securities, to
be issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture
and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings
assigned to them in this Article One, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper," as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
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<PAGE>
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes
imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611 to act on behalf of the Trustee to
authenticate Securities.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or
in different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the Company, 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" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, any day, other than a Saturday or Sunday,
that is not a day on which banking institutions in The City of New York are
authorized or required by law, regulation or executive order to close or,
when used with respect to a Place of Payment (other
2
<PAGE>
than The City of New York) or any other particular location referred to in
this Indenture or in the Securities (other than The City of New York), any
day, other than a Saturday or Sunday, that is not 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, as
amended, 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 Depositary" shall have the meaning specified in Section 304.
"Common Stock" means, with respect to any Person, all shares of capital
stock issued by such Person other than Preferred Stock.
"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, Vice Chairman of the Board, President, or any Executive Vice
President, Senior Vice President or Vice President and by its Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Conversion Event" means the cessation of use of (1) 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, (2) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities, or (3) 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 48 Wall Street,
New York, New York 10286.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
3
<PAGE>
"DTC" has the meaning specified in Section 304.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" shall have the meaning specified in Section 304.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, as used in the United States applied on a consistent basis.
"Global Security" means a security evidencing all or a part of a series
of Securities issued to and registered in the name of the depositary for such
series, or its nominee, in accordance with Section 305, and bearing the
legend prescribed in Section 203.
"Government Obligations" means Securities which are (1) 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 (2) 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,
HOWEVER, 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.
4
<PAGE>
"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 be
supplemented or amended from time to time 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 be supplemented or amended from time to time by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the, or those, particular
series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section
1010, includes such Additional Amounts.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, notice of redemption, notice of option to
elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, Vice Chairman of the Board, President, or any
Executive Vice President, Senior Vice President or 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.
5
<PAGE>
"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 therefore authenticated and delivered
under this Indenture, EXCEPT:
(1) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or
redemption (including repayment at the option of the Holder) money in the
necessary amount has been theretofore been 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, HOWEVER, 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;
(3) 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;
(4) 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
(5) Securities converted into Common Stock or Preferred Stock
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 calculation 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
6
<PAGE>
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 of 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 owned as provided in
clause (iv) above 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, business trust, partnership,
joint venture, association, joint-stock company, trust, limited liability
company, limited liability partnership, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or stolen
coupon appertains.
"Preferred Stock" means, with respect to any Person, all capital stock
issued by such Person that are entitled to a preference or priority over any
other capital stock issued by such Person with respect to any distribution of
such Person's assets, whether by dividend or upon any voluntary or
involuntary liquidation, dissolution or winding up.
"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.
7
<PAGE>
"Registered Security" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, any vice
president (whether or not designated by a number or a word or words added
before or after the title "vice president"), any assistant secretary, any
assistant treasurer, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular
subject.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; PROVIDED, HOWEVER, that, if at any time there
is more than one Person acting as Trustee under this Indenture, "Securities"
with respect to the Indenture as to which such Person is Trustee shall have
the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" has the meaning ascribed to such term in
Rule 1-02 of Regulation S-X promulgated under the Securities Act of 1933,
as amended, as such Regulation was in effect on January 1, 1996.
"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
Company pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means, with respect to the Company, any other Person of
which more than 50% of (i) the equity or other ownership interests or (ii)
the total voting power of shares of
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capital stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers, trustees or general or managing partners thereof is at the time
owned by the Company or one or more of the other Subsidiaries of the Company
or a combination thereof.
"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.
"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, an estate the
income of which is subject to United States federal income taxation
regardless of its source or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States fiduciaries have the authority to control all
substantial decisions of the trust.
"Yield to Maturity" means, with respect to any Original Issue Discount
Security, the yield to maturity, computed at the time of issuance of such
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 1009) shall include:
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(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in
the exercise or 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, 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
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
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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 104. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
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.
The ownership of Registered Securities shall be proved by the Security
Register. As to any matter relating to beneficial ownership interests in any
Global Security, the records of the appropriate depositary and of
participants in such depositary shall be dispositive for purposes of this
Indenture.
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.
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
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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, HOWEVER, 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 then eleven months after the
record date.
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; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Chief
Financial Officer (with a copy to the Company's general counsel); or
(3) either the Trustee or the Company, by the other party shall be
sufficient for every purpose hereunder if given by facsimile transmission,
receipt confirmed by telephone followed by an original copy delivered by
guaranteed overnight courier; if to the Trustee at facsimile number (212)
815-5915; and if to the Company at facsimile number (760) 741-8674.
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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, if any, 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, if any, 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
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Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS
This Indenture may be executed in any number of counterparts, each of
which when executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture. 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. SEVERABILITY 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 without regard,
to the extent permitted by law, to conflicts of laws principles. 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
or the last date on which a Holder has the right to convert or exchange a
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) or
conversion or exchange of such security need not be made at such Place of
Payment on such date, but (except as otherwise provided with respect to such
Security) may
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be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date, Redemption
Date, Repayment Date or sinking fund payment date, or at the Stated Maturity
or Maturity, or on such last day of conversion or exchange, provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
SECTION 113. IMMUNITY OF STOCKHOLDERS, DIRECTORS, OFFICERS AND AGENTS OF THE
COMPANY
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any
indebtedness evidenced thereby, shall be had against any past, present or
future stockholder, employee, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration
for the issue of the Securities.
SECTION 114. CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required or deemed to be included in this Indenture
by any of the provisions of the Trust Indenture Act, such required provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
to be excluded, 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 the form
established in one or more indentures supplemental hereto or approved from
time to time by or pursuant to a Board Resolution, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by or pursuant to 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.
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Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
Subject to Section 304, 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 mechanically
reproduced on safety paper or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities or
coupons, as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
Dated: By:
------------------------- -----------------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM
If Securities of or within a series are issuable in the form of one or
more Global Securities, any such Global Security or Securities may provide
that it or they shall represent the aggregate amount of all Outstanding
Securities of such series (or such lesser amount as is permitted by the terms
thereof) from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of any Global Security 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 or 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
Global 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 Global Security 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 Global Security if such Security was never issued
and sold by the Company and the Company delivers to the Trustee the Global
Security together with written instructions (which
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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 Global Security 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 (1) in the
case of a permanent Global Security in registered form, the Holder of such
permanent Global Security in registered form or (2) in the case of a
permanent Global Security in bearer form, Euroclear or CEDEL.
Any Global Security authenticated and delivered hereunder shall bear a
legend, in addition to any other legend or legends permitted by Section 201,
in substantially the following form:
This Security is a Global Security within the meaning set forth in the
Indenture hereinafter referred to and is registered in the name of a
depositary or a nominee of a depositary. This Security is exchangeable for
Securities registered in the name of a person other than the depositary or
its nominee only in the limited circumstances described in the Indenture,
and, unless and until it is exchanged for Securities in definitive form as
aforesaid, may not be transferred except as a whole by the depositary to a
nominee of the depositary or by a nominee of the depositary to the
depositary or another nominee of the depositary or by the depositary or its
nominee to a successor depositary or its nominee.
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 in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
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(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 where the principal of (and premium, if
any), interest, if any, on, and Additional Amounts, if any, payable in
respect of, Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer,
exchange or conversion and notices or demands to or upon the Company in
respect of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the option
of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which, the
currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities of
the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any 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;
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(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) and 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 and the manner
of determining the equivalent thereof in Dollars for purposes of the
definition of "Outstanding" in Section 101;
(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
defined terms, Events of Default or covenants of the Company or other
provisions of this Indenture with respect to Securities of the series,
whether or not such defined terms, Events of Default, covenants or other
provisions are consistent with the defined terms, Events of Default,
covenants or other provisions 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;
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(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 1010 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 Stock
or Preferred Stock, as the case may be, and the terms and conditions upon
which such conversion shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any adjustment of
the applicable conversion price and any requirements relative to the
reservation of such shares for purposes of conversion) and applicable
limitations on the ownership or transferability of the Common Stock or
Preferred Stock into which such Securities are convertible; and
(24) any other terms of the series.
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 and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
All
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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 form or 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 before 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 or any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
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, Vice Chairman of the
Board, President or one of its Executive Vice Presidents, Senior Vice
Presidents or Vice Presidents, under its corporate seal (or a facsimile
thereof), and attested by its Secretary or Treasurer or one of its Assistant
Secretaries or an Assistant Treasurer. 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 before 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 coupons 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 substantially 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 before 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
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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 303 and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary Global Security shall be deemed
to be delivery in connection with its original issuance of such beneficial
owner's interest in such permanent Global Security. Except as permitted by
Section 306, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then matured have been
detached and cancelled.
If all the Securities of any series are not to be issued at one time and
if the terms of such series as established in or pursuant to a Board
Resolution or supplemental indenture shall so permit, such Company Order may
set forth procedures acceptable to the Trustee for the issuance of such
Securities and determining the terms of particular Securities of such series,
such as interest rate or formula, maturity date, date of issuance and date
from which interest shall accrue.
In authenticating Securities of any series, 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,
(1) 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, fraudulent transfer, reorganization
and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights generally and to
general equitable principles; and
(2) 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
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adversely 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 (including a Global 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
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 (which shall be exchanged as
otherwise provided herein or as otherwise provided in or pursuant to a Board
Resolution or supplemental indenture), 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
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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 nonmatured 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.
Unless otherwise provided in or pursuant to a Board Resolution, the
following provisions of this Section 304 shall govern the exchange of
temporary Securities other than through the facilities of The Depository
Trust Company ("DTC"). If any such temporary Security is issued in global
form, then such temporary Global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euroclear and CEDEL,
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
Global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary Global Security, executed by the Company.
On or after the Exchange Date, such temporary Global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary Global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
temporary Global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary Global Security shall be in
bearer form, registered form, permanent global bearer form or permanent
global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified,
as requested by the beneficial owner thereof; PROVIDED, HOWEVER, that, unless
otherwise specified in such temporary Global Security, upon such presentation
by the Common Depositary, such temporary Global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary
Global Security held for its account then to be exchanged, each in the form
set forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and PROVIDED FURTHER that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
Global Security only in compliance with the requirements of Section 303.
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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-2 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary Global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary Global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like unless such Person takes delivery of such definitive Securities in
person at the offices of Euroclear or CEDEL. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary Global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear
and CEDEL to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other forms as may be
established pursuant to Section 301), for credit without further interest on
or after such Interest Payment Date to the respective accounts of Persons who
are the beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL, as the case
may be, a certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form set forth in
Exhibit A-2 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 and of the
third paragraph or Section 303 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.
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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 Securities and of transfers of
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 Securities and transfers
of Securities on such Security Register as herein provided. If 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 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, Securities of any series may be exchanged for other 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 Securities to be exchanged at any such office or agency.
Whenever any such 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. 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
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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 (1) any Regular
Record Date and before the opening of business at such office or agency on
the relevant Interest Payment Date, or (2) 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 (i)
DTC notifies the Company that it is unwilling or unable to continue as
depositary or if DTC ceases to be a clearing agency registered as such under
the Securities Exchange Act of 1934, as amended, at any time when the
depositary is required to be so registered in order to act as depositary for
the applicable Global Security and a successor depositary is not appointed
within 90 days after the Company receives such notice or learns of such
ineligibility, (ii) the Company determines that the Securities of a series
shall no longer be represented by a Global Security and executes and delivers
to the Trustee an Officers' Certificate to such effect or (iii) an Event of
Default with respect to the Securities of such series shall have occurred and
be continuing and beneficial owners representing a majority in aggregate
principal amount of the Outstanding Securities of such series advise DTC to
cease acting as depositary for the applicable Global Security, 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,
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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 Bearer Security delivered in exchange for a portion of a
permanent Global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in
exchange for any portion of a permanent Global Security after the close of
business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as
the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such permanent Global Security is payable in
accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the 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 (including evidence of title and identity) 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 or the second
sentence of the third preceding paragraph not involving any transfer.
Neither the Company nor the Trustee shall be required to (1) 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 the mailing or first publication, as the case may
be, of notice of redemption of such Securities 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
day of mailing of the relevant notice of redemption, or (2) register the
transfer of or exchange any Registered Security, or portion thereof, 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 (3) exchange any
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Bearer Security so selected for redemption, except that such Bearer Security
may be exchanged for a Registered Security of that series and like tenor;
PROVIDED, HOWEVER, that such Registered Security shall be simultaneously
surrendered for redemption, or (4) 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 (1)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (2) 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 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series with its coupons, if any, issued
pursuant to this Section 306 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 306 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 in the relevant
Security Register; PROVIDED, HOWEVER, that, except as otherwise specified
with respect to a series of Securities in accordance with the provisions of
Section 301, each installment of interest on any Registered Security may at
the Company's option be paid by (1) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto, to the
address of such Person as it appears on the Security Register or (2) wire
transfer to an account maintained by the payee located inside the United
States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent Global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent Global Security
held for its account by Cede & Co. or the Common Depositary or other nominee,
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.
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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 Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by the
Trustee), and at the same time the Company shall deposit with the Trustee an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
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 publication 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 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.
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(2) The Company may make payment of any Defaulted Interest on the
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 307 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. All such payments so made to any such Person, or upon
such Person's order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for money payable upon
any such Security.
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.
No holder of any beneficial interest in any Global Security held on its
behalf by a depositary shall have any rights under this Indenture with
respect to such Global Security and such depositary (or its nominee) shall be
treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
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 Global Security 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 (or its nominee), as
a Holder, with respect to such Global Security or impair, as between such
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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 conversion or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously 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 cancelled by the Trustee. If the Company shall so acquire any of
the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 309, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by the
Trustee shall be returned to the Company.
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 1010), and the Trustee,
upon receipt of a Company Order, and at the expense of the Company, shall
execute instruments in form and substance satisfactory to the Trustee and the
Company acknowledging satisfaction and discharge of this Indenture as to such
series when
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(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 Securities and maturing after such exchange, whose surrender is
not required or has been waived as provided in Section 305, (ii)
Securities and coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 1106, and (iv) Securities and
coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable or
(ii) will become due and payable at their Stated Maturity
within one year or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such 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.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section 401, the obligations of
the Company under Sections 304, 305, 306 and 1002 and 1003 and the obligations
of the Trustee under Section 402 and the last paragraph or 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 (whatever the reason
for such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of 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, whether at
Stated Maturity or by declaration of acceleration, notice of redemption, notice
of option to elect repayment or otherwise; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or in any Security of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section 501 specifically dealt
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with or which has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any of its Subsidiaries
(including obligations under leases required to be capitalized on the balance
sheet of the lessee under generally accepted accounting principles, but not
including any indebtedness or obligations for which recourse is limited to
property purchased) in an aggregate principal amount in excess of $25,000,000 or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money borrowed
by the Company or any of its Subsidiaries (including such leases, but not
including such indebtedness or obligations for which recourse is limited to
property purchased) in an aggregate principal amount in excess of $25,000,000,
whether such indebtedness exists on the date of this Indenture or shall
thereafter be created, which default shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable or such obligations being accelerated,
without such acceleration having been rescinded or annulled; or
(6) the Company or any Significant Subsidiary of the Company pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding or files a petition
or answer or consent seeking reorganization or relief or consents to
the filing of such petition;
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding or to the commencement of any case
or proceeding against it;
(C) consents to the appointment of a Custodian of it or for all
or any substantial part 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 of the Company in an involuntary case or proceeding or
adjudges the Company or any Significant Subsidiary of the Company as
bankrupt or insolvent or approves as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Significant Subsidiary of the Company;
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(B) appoints a Custodian of the Company or any Significant
Subsidiary of the Company or for all or any substantial part of the
property of the Company or any Significant Subsidiary of the Company;
or
(C) orders the liquidation or winding up of the Company or any
Significant Subsidiary of the Company
and, in the case of any of subclause (A), (B) or (C) of this paragraph (7), the
order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11, U.S. Code
or any similar federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian,
sequestrator 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 amount (or, if Securities of
that series 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 Five provided, the Holders of not less than 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 of acceleration
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
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declaration of acceleration and interest thereon at the rate or rates
borne by or provided for, as the case may be, 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, as the case
may be, 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 of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amounts, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in,
as the case may be, 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 and 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, 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
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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:
(1) 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 and its agents and counsel) and of the Holders
allowed in such judicial proceeding and
(2) to collect and receive any money 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
if 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.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the
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Trustee shall be held to represent all the Holders of the Securities, and it
shall not be necessary to make any Holders of the Securities parties to any
such proceedings.
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 and 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 Five 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 the 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 RIGHTS 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 coupon on the respective due dates expressed in such Security
or coupon (or, in the case of redemption at the option of the Company or
repayment at the option of the Holder, on the relevant Redemption Date or
Repayment Date, as applicable) 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.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE
To the extent permitted by law and 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. To the extent permitted by law, 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 Five 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.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Holders.
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
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coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of such
series or any related coupons or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 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 of any series,
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 or Additional Amounts in
respect of any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption at the option of the Company or
repayment at the option of the Holder, on or after the relevant Redemption Date
or Repayment Date, as applicable).
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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 interest 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 601, 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;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
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(5) the Trustee shall be under no obligation to exercise any of
the rights or power 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, unless requested in
writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series; PROVIDED that,
if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such examination shall be paid by the Holders or, if paid by the Trustee,
shall be repaid by the Holders upon demand. 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, relevant to the facts or matters that are the
subject of its inquiry, 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, rights or power conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither
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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, and 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 reasonable 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
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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 606, the Trustee shall have a lien prior to the Securities upon
all property and money held or collected by the Trustee as such, except money
held in trust for the payment of principal of (or premium, if any) or
interest or Additional Amounts on particular Securities or any coupons.
The provisions of this Section 606 shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements
of federal, state, territorial or District of Columbia supervising or
examining authority, then for the purposes of this Section 607, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 607, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article Six. Neither the Company nor any Affiliate of the Company shall
serve as Trustee.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Six shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
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 or resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
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.
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 removal, the Trustee being removed may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a
successor Trustee.
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
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(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.
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.
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
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
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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.
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, 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.
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 this Section 609, as the case may be.
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 Six.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation
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to which the Trustee shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder; PROVIDED such corporation shall be
otherwise qualified and eligible under this Article Six, without the
execution or filing of any paper or any further act on the part 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 611, 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 611, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this
Section 611.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise
eligible under this
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Section 611, 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 611, 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 611.
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 611.
If an appointment with respect to one or more series is made pursuant to
this Section 611, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The Bank of New York, as Trustee
Dated: 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 October 15 of each year commencing with the first
October 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 October 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, as amended; 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, as
amended, 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),
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such summaries of any information, documents and reports required to be filed
by the Company pursuant to clauses (1) and (2) of this Section 703 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:
(1) semiannually, 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
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, semiannually,
upon such dates as are set forth in or established pursuant to the Board
Resolution or indenture supplemental hereto authorizing such series, and
(2) 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 will not consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any Person unless
(1) either the Company shall be the continuing entity, or the successor
Person (if other than the Company) formed by or resulting from such
consolidation or merger or which shall have received the transfer of such
assets shall be a corporation organized and existing under the laws of the
United States or any 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 1010) 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 and the Securities to be
performed or observed by the Company, by supplemental indenture, complying
with Article Nine, satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation and (2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result thereof as having been incurred, and
any liens or other encumbrances on any property or assets of the Company or
any Subsidiary that are incurred, created or assumed as a result thereof as
having
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been created, incurred or assumed, 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 ENTITY
In case of any such consolidation, merger, sale, lease or conveyance and
upon any such assumption by the successor corporation in accordance with the
provisions of Section 801, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the predecessor corporation,
except in the event of a lease, shall be relieved of any further obligation
under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to
the Trustee; and, upon the order of such successor corporation, instead of
the Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in
the Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL
Any consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive an
Officers' Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor corporation, complies with the provisions of this Article Eight and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
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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 corporation to the
Company as obligor under this Indenture and the Securities 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), may provide for an immediate
enforcement upon such default, 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, HOWEVER, 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 not apply to
any Outstanding Security of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision; or
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(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures, if applicable, relating to Securities convertible
into Common Stock or Preferred Stock, as the case may be; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture; PROVIDED, HOWEVER, that such actions shall not
adversely affect the interests of the Holders of Securities of any series or
any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance, covenant
defeasance and discharge of any series of Securities pursuant to Sections
401, 1402 and 1403; PROVIDED, HOWEVER, 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 and any related
coupons 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 of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities and any
related coupons under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or premium, if any, 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 or repayment thereof, or
change any obligation of the Company to pay Additional Amounts pursuant to
Section 1010 (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original Issue
Discount Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
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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 reduce the amount of premium payable on any such repayment), or
change any Place of Payment where, or the currency or currencies, currency
unit or units or composite currency or currencies in which, any principal 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 (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section 1504
for quorum or voting, or
(3) modify any of the provisions of this Section 902, Section 513
or 1011, 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 902
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 Nine 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
Nine, 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 that are theretofore or thereafter
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authenticated and delivered hereunder and of any coupon appertaining thereto
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT
Every supplemental indenture executed pursuant to this Article Nine
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 Nine 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 1010 in respect of principal
of (or premium, if any, on) such a Bearer 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.
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 such 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: (1) in The City of
New York, an office or agency where any Securities of that series may be
presented or surrendered for payment or conversion, where any Securities of
that
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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);
(2) 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 1010) or
conversion; PROVIDED, HOWEVER, that if the Securities of that series are
listed on any 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 any 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 (3) 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 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 1010) 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 1010) shall be made at the office of the
Company's Paying Agent in 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
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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 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 (1) are
denominated in a Foreign Currency or (2) may be payable in a Foreign
Currency, or so long as it is required under any other provision of this
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 1003,
that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest or Additional Amounts on Securities in trust for
the benefit of the Persons
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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 or Additional Amounts on the
Securities of that series; 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 terms 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 have 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, such 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, or to be
mailed to Holders of Registered Securities, or both, 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 or notice, as the case
may be, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. 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, all material rights (by certificate of incorporation, by-laws and
statute) and all material 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.
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SECTION 1005. 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 the Company and its Subsidiaries shall not be
prevented from selling or otherwise disposing of their properties for value
in the ordinary course of their business.
SECTION 1006. INSURANCE
The Company will, and will cause each of its Subsidiaries to, keep in
force upon all of its properties and operations policies of insurance carried
with responsible companies in such amounts and covering all such risks as
shall be customary in the industry in accordance with prevailing market
conditions and availability.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary;
PROVIDED, HOWEVER, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
the amount, applicability or validity of which is being contested in good
faith by appropriate proceedings.
SECTION 1008. PROVISION OF FINANCIAL INFORMATION
Whether or not the Company is subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, the Company will, within 15 days
after each of the respective dates by which the Company would have been
required to file annual reports, quarterly reports and other documents with
the Commission if the Company were so subject, (1) transmit by mail to all
Holders, as their names and addresses appear in the Security Register,
without cost to such Holders, copies of the annual reports, quarterly reports
and other documents which the Company would have been required to file with
the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended, if the Company were subject to such Sections, (2) file
with the Trustee copies of the annual reports, quarterly reports and other
documents which the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, if the Company were subject to such Sections, and (3)
promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any prospective
Holder.
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SECTION 1009. 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 the Securities, and in the event of any
noncompliance, specifying such noncompliance and the nature and status
thereof. For purposes of this Section 1009, such compliance shall be
determined without regard to any period of grace or requirement of notice
under this Indenture.
SECTION 1010. 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. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned Officers' Certificate, then the
Trustee or such Paying Agent shall be entitled (1) 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
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advising otherwise and (2) 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 pursuant to this Section 1010 or in
reliance on any Officers' Certificate furnished pursuant to this Section 1010
or in reliance on the Company's not furnishing such an Officers' Certificate.
SECTION 1011. 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 1008, inclusive, with
respect to the Securities of any series 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 Eleven.
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 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 originally 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
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60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series originally 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 Security or portion
thereof.
Any notice that is mailed to the Holders of 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 and Additional Amounts, if any, payable
upon redemption;
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, that on
and after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
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(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if any,
will become due and payable upon each such Security, or the portion thereof,
to be redeemed and, if applicable, that interest thereon shall cease to
accrue on and after said date;
(6) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and accrued interest, if any;
(7) that the redemption is for a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity satisfactory
to the 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
Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for 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 Securities, 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, the place or places where such Securities may be surrendered for
conversion, and the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed at the election of the
Company 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
On or before 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.
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If any Securities called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such Security shall be paid to the Company
upon Company Request or, if then held by the Company, shall be discharged
from such trust.
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 Registered Securities convertible into Common Stock or
Preferred Stock, installments of interest on Registered Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant record dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee
if there be furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; PROVIDED, HOWEVER, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
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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 or
provided in, as the case may be, 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 Eleven 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 or her 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. If a Global
Security is so surrendered, the Company shall execute and the Trustee shall
authenticate and deliver to the depositary, without service charge, a new
Global Security in a denomination equal to and in exchange for the unredeemed
portion of the principal of the Global Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE
The provisions of this Article Twelve 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
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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, HOWEVER, 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 applicable
terms, if any, of such Securities and (except as otherwise specified by the
terms of such series established pursuant to Section 301) in accordance with
this Article Thirteen.
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
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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 on or 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
any "Option to Elect Repayment" or similar 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 letter from a
member of a national securities exchange, or the National Association of
Securities Dealers, Inc., or a commercial bank or trust company in the United
States setting forth the name of the Holder of the Security, the principal
amount of the Security, the principal amount of the Security to be repaid,
the CUSIP number, if any, or a description of the tenor and terms of the
Security, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together with any
duly completed "Option to Elect Repayment" or similar form 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 or the repayment option by the Holder shall be irrevocable
unless waived by the Company.
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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
Thirteen and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be repaid, except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the principal amount of such Security so to be
repaid shall be paid by the Company, together with accrued interest, if any,
to the Repayment Date; PROVIDED, HOWEVER, that coupons whose Stated Maturity
is on or prior to the Repayment Date shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and PROVIDED FURTHER that,
in the case of Registered Securities, installments of interest, if any, whose
Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant
record dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest borne by or
provided in, as the case may be, such Security.
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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 (1)
defeasance of the Securities of or within a series under Section 1402 or (2)
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 Fourteen (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 Fourteen.
SECTION 1402. DEFEASANCE
Upon the Company's exercise of the above option applicable to this
Section 1402 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 (1) and (2) 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: (1)
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 and Section 1405,
payments in respect of the principal of (and premium, if any) and interest,
if any, on such
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Securities and any coupons appertaining thereto when such payments are due,
(2) the Company's obligations with respect to such Securities under Sections
304, 305, 306, 1002 and 1003 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1010, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and
(4) this Article Fourteen. Subject to compliance with this Article Fourteen,
the Company may exercise its option under this Section 1402 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 1008, inclusive
(other than its obligations under Section 1004 to preserve and keep in full
force and effect its corporate existence), 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 1008,
inclusive (other than its obligations under Section 1004 to preserve and keep
in full force and effect its corporate existence), 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 (other than
its obligations under Section 1004 to preserve and keep in full force and
effect its corporate existence) 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 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:
(1) 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, (A) an amount in such currency, currencies or currency
unit or composite currency in which such Securities and any coupons
appertaining thereto and installments of principal and interest thereon
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are payable at Stated Maturity, or (B) 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 and installments of principal and interest
thereon are 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, or (C) 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.
(2) 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.
(3) 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).
(4) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel of outside counsel
of recognized standing with respect to federal income tax matters stating
that subsequent to the date of this Indenture, (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling
or (B) 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.
(5) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel of outside counsel
of recognized standing with respect to federal income tax matters 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
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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.
(6) 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 (A) as a result of a deposit
pursuant to clause (1) above and the related exercise of the Company's option
under Section 1402 or 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 (B) all necessary registrations under said act have been
effected.
(7) Such defeasance or covenant defeasance, as the case may be,
shall not cause the Trustee to have a conflicting interest for purposes of
the TIA with respect to any securities of the Company.
(8) Notwithstanding any other provisions of this Section 1404,
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.
Any deposits with the Trustee (or other qualifying trustee) referred to
in paragraph (1) above shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee.
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 (other
than the Company) 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(1) has been
made, (1) 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 or composite
currency other than that in which the deposit pursuant to Section 1404(1) has
been made in respect of such
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Security or (2) a Conversion Event occurs in respect of the currency or
currency unit or composite currency in which the deposit pursuant to Section
1404(1) 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 or
composite currency 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 or composite currency in effect on the second
Business Day prior to each payment date.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or Government
Obligations or other property 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 Fourteen 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 Fourteen.
SECTION 1406. REINSTATEMENT
If (i) the Trustee (or other qualifying trustee appointed pursuant
to Section 1404) or any Paying Agent is unable to apply any moneys or
Government Obligations or other property deposited pursuant to Section
1404(1) to pay any principal of, premium, if any, interest on or Additional
Amounts with respect to any Securities or coupons appertaining thereto by
reason of any legal proceeding or any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application or (ii) an event or condition which constitutes an Event of
Default or event which, with notice or lapse of time or both, would
constitute an Event of Default under Section 501(6) or (7) shall occur on or
before the 91st day after the date of such deposit, then the Company's
obligations under this Indenture (insofar as relates to such Securities) and
under such Securities and any coupons appertaining thereto shall be revived
and reinstated as though no deposit had occurred, until (solely in the case
of clause (i) above) such time as the Trustee (or other qualifying trustee)
or Paying Agent is permitted to apply all such moneys and Government
Obligations or other property to pay the principal of, premium, if any,
interest on, and Additional Amounts, if any, with respect to such Securities
and any coupons appertaining thereto as contemplated by this Article;
PROVIDED, HOWEVER, that, if the Company makes any payment of the principal,
premium, if any, interest or Additional Amounts with respect to any such
Securities or coupons appertaining thereto following the reinstatement
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of its obligations as aforesaid, the Company shall be subrogated to the
rights of the Holders of such Securities and coupons to receive such payment
from the funds held by the Trustee (or other qualifying trustee) or Paying
Agent.
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 Fifteen 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
(1) 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 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 20 nor more than 180 days prior to the date fixed
for the meeting.
(2) 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 20
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 for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (1)
of this Section 1502.
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.
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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 the reconvening of any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less than
10 days. Notice of the reconvening of any adjourned meeting shall be given
as provided in Section 1502(2), 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.
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 1504 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 such series and one or more additional
series:
(1) there shall be no minimum quorum requirement for such meeting
and
(2) the principal amount of the Outstanding Securities of all such
series that are entitled to 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,
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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
(1) 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 inspector of elections, 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.
(2) 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(2), 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.
(3) 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.
(4) 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
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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.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
REALTY INCOME CORPORATION
By:
----------------------------------
Michael R. Pfeiffer,
Senior Vice President,
General Counsel and Secretary
The Bank of New York, as Trustee
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EXHIBIT A-1
FORMS OF CERTIFICATION
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 are owned
by (i) 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) United States
Person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States Treasury
Regulations Section 1.165-12(c)(1)(v), are herein referred to as "financial
institutions") purchasing for their own account or for resale or (b) United
States Person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on
its own behalf or through its agent, that you may advise Realty Income
Corporation 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.
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This certificate excepts and does not relate to [US$ ____________] 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:
-------------------------
[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:
-------------------------------
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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, [US$]
_________________________ principal amount of the above-captioned Securities
is owned by (i) 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) United States
Person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States Treasury
Regulations Section 1.165-12(c)(1)(v), are herein referred to as "financial
institutions") purchasing for their own account or for resale or (b) United
States Person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a) or (b), each such financial institution has agreed, on its own behalf or
through its agent, that we may advise Realty Income Corporation 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) 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) (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
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any portion of the part submitted herewith for exchange (or, if relevant,
collection of any interest) are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated:
-----------------------
[To be dated no earlier than the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[CEDEL S.A.]
By:
----------------------------------
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Exhibit 4.2
Pricing Committee Resolutions
RESOLUTIONS OF THE PRICING COMMITTEE
OF THE BOARD OF DIRECTORS OF
REALTY INCOME CORPORATION
WHEREAS, in resolutions adopted on July 15, 1997 (the "Resolutions"),
the Board of Directors authorized the registration, issuance and sale of up to
$300 million of securities, such securities to be either debt securities, common
stock or preferred stock (collectively, the "Securities"); and
WHEREAS, pursuant to the Resolutions, the Company filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 333-34311) (as amended, the "Registration Statement")
relating to the Securities and the Commission declared the Registration
Statement effective on September 16, 1997;
WHEREAS, the Board of Directors has determined to issue a series of
debt securities due 2008 (the "Notes") pursuant to an indenture dated as of
October 28, 1998 (the "Indenture"), between the Company and The Bank of New
York, as Trustee (the "Trustee"), and to offer and sell the Notes to Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, A.G. Edwards &
Sons, Inc., PaineWebber Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation, EVEREN Securities, Inc., Sutro & Co. Incorporated and Wheat First
Securities, Inc. (the "Underwriters"), pursuant to a purchase agreement (the
"Purchase Agreement") between the Company and the Underwriters for reoffering by
the Underwriters to the public; and
WHEREAS, pursuant to Resolution adopted by the Board of Directors on
August 12, 1998, the Board of Directors established a Pricing Committee of the
Board of Directors for the purpose of approving, among other things, the amount,
manner and terms of the issuance and sale of the Notes and appointed William E.
Clark, Thomas A. Lewis, Richard J. VanDerhoff and Willard H. Smith to serve on
such committee.
NOW THEREFORE, BE IT RESOLVED, that in accordance with Section 301 of
the Indenture, the following terms of the Notes are hereby established
(capitalized terms used in these resolutions and not otherwise defined herein
having the same definitions as in the Indenture):
<PAGE>
1. The Notes shall constitute a series of Securities having the
title "8 1/4% Monthly Income Senior Notes due 2008."
2. The aggregate principal amount of Notes that may be authenticated
and delivered under the Indenture (except for Notes authenticated
and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Sections 304, 305,
306, 906, 1107 or 1305 of the Indenture) shall be limited in
aggregate principal amount of $115,000,000. Such series may not
be reopened for the issuance of additional Securities of such
series.
3. The entire outstanding principal of the Notes shall be payable on
November 15, 2008 (the "Maturity Date").
4. The rate at which the Notes shall bear interest shall be 8 1/4%
per annum; the date from which such interest shall accrue shall
be October 28, 1998, the Interest Payment Dates on which such
interest will be payable shall be the 15th of each month,
beginning December 15, 1998; the Regular Record Dates for the
interest payable on the Notes on any Interest Payment Date shall
be the 1st of each month, as the case may be, immediately
preceding the applicable Interest Payment Date; and the basis
upon which interest shall be calculated shall be that of a
360-day year consisting of twelve 30-day months. If any
principal of or premium, if any, or interest on any of the
Notes is not paid when due, then such overdue principal and,
to the extent permitted by law, such overdue premium or
interest, as the case may be, shall bear interest, until paid
or until such payment is duly provided for, at the rate of
8 1/4% per annum.
5. The place where the principal of, premium, if any, and interest
on the Notes shall be payable, where Notes may be surrendered for
the registration of transfer or exchange, and where notices or
demands to or upon the Company in respect of the
<PAGE>
Notes and the Indenture may be served shall be the office or
agency maintained by the Company for such purpose in the
Borough of Manhattan, The City of New York, which shall
initially be the Corporate Trust Office of the Trustee at 101
Barclay St., Floor 21 West, New York, New York 10286.
6. The Notes shall not be redeemable at the option of the Company or
any Holder thereof, upon the occurrence of any particular
circumstances or otherwise. The Notes will not have the benefit
of any sinking fund.
7. The Notes shall be issued in denominations of $25 and any
integral multiples thereof.
8. The Trustee shall be the initial Security Registrar, transfer
agent and Paying Agent for the Notes.
9. The entire outstanding principal amount of the Notes shall be
payable upon declaration of acceleration of the maturity of the
Notes pursuant to Section 502 of the Indenture.
10. Payment of the principal of, premium, if any, and interest on the
Notes shall be made in Dollars, and the Notes shall be
denominated in Dollars.
11. The amount of payments of principal of, premium, if any, and
interest on the Notes shall be determined with reference to an
index, formula or other similar method.
12. Payments of the principal of, premium, if any, and interest on
the Notes shall be made in Dollars, and the Holders have no right
to elect the currency in which such payments are made.
13. In addition to the covenants of the Company set forth in the
Indenture, the covenants set forth in the form of Note attached
hereto as Exhibit A under the captions "Limitation on Incurrence
of Total Debt," "Limitation on Incurrence of Secured Debt,"
<PAGE>
"Debt Service Coverage " and "Maintenance of Total
Unencumbered Assets" (collectively, the "Additional
Covenants") shall be and hereby are added to the Indenture for
the benefit of the Notes, and the Additional Covenants,
together with the defined terms (the "Additional Definitions")
set forth in such form of Note under the caption "Certain
Definitions," are hereby incorporated by reference in and made
a part of these resolutions and the Indenture as if set forth
in full herein and therein; provided that the Additional
Covenants shall only be effective for so long as any of the
Notes is Outstanding; and provided, further, that except as
set forth in (23) below, the definitions of "Subsidiary" set
forth in the form of Note attached hereto as Exhibit A shall
only be applicable with respect to the Additional Covenants
and the Additional Definitions.
14. The Notes shall be issuable only as Registered Securities without
coupons and shall initially be issued in permanent global form
(the "Global Note"). Beneficial owners of interests in the
Global Note may exchange such interests for Notes of like tenor
of any authorized denomination only under the circumstances
provided in Section 305 of the Indenture. The Depository Trust
Company ("DTC") shall be the initial depository with respect to
the Global Note.
15. The Notes will not be issuable as Bearer Securities, and a
temporary global certificate will not be issued.
16. Except as otherwise provided in the Indenture and in these
resolutions with respect to the payment of Defaulted Interest,
interest on any Note shall be payable only to the Person in whose
name that Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest. Payments of principal, premium, if any, and
interest in respect of the Notes will be made by the Company by
wire transfer of
<PAGE>
immediately available funds; provided that, in the event that
any Notes are issued in definitive certificated form, the
Holders thereof shall have given appropriate wire transfer
instructions to the Company and, in the event that such wire
transfer instructions shall not have been given to the Company
by the Holder of any Note issued in definitive certificated
form, payments of interest on such Note may be made by mailing
a check for such interest to the address of such Holder as it
appears on the Security Register.
17. Sections 1402 and 1403 of the Indenture shall be applicable to
the Notes, and the provisions of Section 1403 shall also be
applicable with respect to the Company's obligations under the
Additional Covenants; provided that the Company shall be entitled
to effect defeasance or covenant defeasance only with respect to
all, and not less than all, of the Notes.
18. The Notes will be authenticated and delivered as provided in
Section 303 of the Indenture.
19. The Company shall not be required to pay Additional Amounts with
respect to the Notes as contemplated by Section 1010 of the
Indenture.
20. The Notes shall not be convertible into Common Stock or Preferred
Stock.
21. The Notes will be direct, senior unsecured obligations of the
Company and will rank equally with all other senior unsecured
indebtedness of the Company from time to time outstanding.
22. Insofar as Section 801 of the Indenture is applicable to the
Notes, the term "Subsidiary," as used in Section 801(2) of the
Indenture, shall have the meaning set forth in the form of Note
attached hereto as Exhibit A (instead of the meaning set forth in
Section 101 of the Indenture), and the term "indebtedness," as
used in Section 801(2), shall be deemed to include
<PAGE>
"Debt" and "Secured Debt" (as such terms are defined in the
form of Note attached hereto as Exhibit A).
23. The provisions of Section 1011 of the Indenture shall be
applicable with respect to any term, provision or condition set
forth in the Additional Covenants, in addition to any term,
provision and condition set forth in Sections 1004 to 1008,
inclusive, of the Indenture.
24. The Notes shall have such additional terms as are set forth in
the form of Note attached hereto as Exhibit A, which terms are
hereby incorporated by reference in and made a part of these
resolutions and the Indenture as if set forth in full herein and
therein.
RESOLVED, that the public offering price of the Notes shall be 100% of
the principal amount thereof plus accrued interest from October 28, 1998, and
the Notes shall be sold to the Underwriters at a price equal to 96.5% of the
principal amount thereof.
RESOLVED, that the forms of Indenture and Purchase Agreement presented
to and reviewed by this committee, and the form of Note attached hereto as
Exhibit A, by, and each of them hereby is, approved (it being understood that,
in the event that Notes are ever issued in definitive certificated form, the
legends appearing as the first two paragraphs on the first page of such form of
Notes may be removed).
RESOLVED, that each of the Chairman of the Board, Chief Executive
Officer, President, any Vice President, Secretary and Treasurer of the Company
be, and each of them acting singly, hereby is, authorized and directed, in the
name and on behalf of the Company and where appropriate under its corporate
seal, attested by its Secretary or Treasurer, to execute and deliver the
Indenture, the Notes and the Purchase Agreement in substantially the forms
approved hereby, with such changes as shall have been approved by the executing
officer, such approval to be conclusively evidenced by the execution thereof (it
being understood that any signatures, attestations and corporate seals appearing
on the Notes may be facsimiles thereof).
RESOLVED, that the preliminary prospectus supplement dated October 16,
1998, prospectus dated October 1, 1997 and final prospectus supplement relating
to the Notes be, and the same hereby are, ratified and approved in all respects.
RESOLVED, that all officers of the Company are authorized, in the name
and on behalf of the Company, to make, execute and deliver or cause to be made,
executed and delivered, and to evidence the approval of the Board of Directors
of, all such officers' certificates,
<PAGE>
depository agreements, letters of representation or other agreements or
arrangements necessary or appropriate in connection with the administration
of any book-entry arrangements for the Notes, and such other agreements,
undertakings, documents or instruments, and to perform all such acts and make
all such payments, as may, in the judgment of such officers, be necessary,
appropriate or desirable to effectuate the purpose of these resolutions,
including the performance of the obligations of the Company under the
Indenture, the Notes, the Purchase Agreement and any other agreement,
undertaking, document or instrument referred to herein or therein.
RESOLVED, that any and all action heretofore taken by the officers of
the Company pursuant to the authority conferred by the preceding resolutions and
consistent therewith is ratified, approved and confirmed.
<PAGE>
EXHIBIT 4.3
FORM OF 8 1/4% MONTHLY INCOME SENIOR NOTE DUE 2008
PRINCIPAL AMOUNT
$100,000,000
REGISTERED NO.: (4,000,000 Notes, $25 principal amount each)
CUSIP NO.: 756109 203
REALTY INCOME CORPORATION
8 1/4% MONTHLY INCOME SENIOR NOTE DUE 2008
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND, UNLESS AND UNTIL
IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE FORM AS AFORESAID, MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ITS NOMINEE TO A SUCCESSOR DEPOSITARY OR ITS
NOMINEE.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DTC"), 55 WATER STREET, NEW YORK, NEW YORK TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SUCH SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
Realty Income Corporation, a Maryland corporation (the "Company,"
which term shall include any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of One Hundred Million Dollars on
October 28, 2008, and to pay interest thereon from the date of issuance, or
from the most recent date to which interest has been paid or duly provided
for, monthly in arrears on the 15th of each month (each, an "Interest Payment
Date"), commencing December 15th, 1998, at the rate of 8 1/4% per annum,
until the entire principal amount hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for,
on any Interest
<PAGE>
Payment Date will, as provided in the Indenture, be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered in
the security register applicable to the notes at the close of business on the
1st day of each month (the "Regular Record Date"), as the case may be,
immediately before the Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date, and may either be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given
to Holders of Notes of this series not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which
the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. If any
principal of or premium, if any, or interest on any of the Notes is not paid
when due, then such overdue principal and, to the extent permitted by law,
such overdue premium or interest, as the case may be, shall bear interest,
until paid or until such payment is duly provided for, at the rate of 8 1/4%
per annum.
Payments of principal, premium, if any, and interest in respect of
this Note will be made by the Company in Dollars by wire transfer of immediately
available funds; provided that, in the event that this Note is issued in
definitive certificated form, the Holder hereof shall have given appropriate
wire transfer instructions to the Company and, in the event that such wire
transfer instructions shall not have been given to the Company by the Holder of
any Note issued in definitive certificated form, payments of interest on such
Note may be made by mailing a check for such interest to the address of such
Holder as it appears on the Security Register. The place where the principal
of, premium, if any, and interest on this Note shall be payable, where this Note
may be surrendered for the registration of transfer or exchange and where
notices or demands to or upon the Company in respect of the Notes and the
Indenture may be served shall be the office or agency maintained by the Company
for such purpose in the Borough of Manhattan, The City of New York, which shall
initially be the Corporate Trust Office of the Trustee at 101 Barclay St., Floor
21 West, New York, New York 10286.
This Note is one of a duly authorized issue of Securities of the
Company (herein called the "Notes"), issued as a series of Securities under an
indenture dated as of October 28, 1998 (the "Indenture"), between the Company
and The Bank of New York, as trustee (the "Trustee," which term includes any
successor trustee under the Indenture with respect to the Notes), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
This Note is one of the duly authorized series designated as the "8 1/4% Monthly
Income Senior Notes due 2008," limited (subject to exceptions provided in the
Indenture) in aggregate principal amount to $100,000,000 (or up to $115,000,000
if the over-allotment option is exercised in full). All terms used in this Note
which are defined in the Indenture and not defined herein shall have the
meanings assigned to them in the Indenture.
<PAGE>
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on the Notes and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Note.
In addition to the covenants of the Company contained in the
Indenture, the Company makes the following covenants with respect to, and for
the benefit of the Holders of, the Notes:
LIMITATION ON INCURRENCE OF TOTAL DEBT. The Company will not, and
will not permit any Subsidiary to, incur any Debt, other than Intercompany Debt,
if, immediately after giving effect to the incurrence of such additional Debt
and the application of the proceeds therefrom on a pro forma basis, the
aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 60% of the sum of (i) the Company's Total Assets as of the end of
the latest 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 required under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), with the Trustee) prior to the
incurrence of such additional Debt and (ii) the increase, if any, in Total
Assets from the end of such quarter including, without limitation, any increase
in Total Assets caused by the application of the proceeds of such additional
Debt (such increase together with the Company's Total Assets is referred to as
the "Adjusted Total Assets").
LIMITATION ON INCURRENCE OF SECURED DEBT. The Company will not, and
will not permit any Subsidiary to, incur any Secured Debt, other than
Intercompany Debt, if, immediately after giving effect to the incurrence of such
additional Secured Debt and the application of the proceeds therefrom on a pro
forma basis, the aggregate principal amount of all outstanding Secured Debt of
the Company and its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 40% of the Company's Adjusted Total Assets.
DEBT SERVICE COVERAGE. The Company will not, and will not permit any
Subsidiary to, incur any Debt, other than Intercompany Debt, if the ratio of
Consolidated Income Available for Debt Service to the Annual Debt Service Charge
for the period consisting of the four consecutive fiscal quarters most recently
ended prior to the date on which such additional Debt is to be incurred is less
than 1.5 to 1.0, on a pro forma basis after giving effect to the incurrence of
such 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 any
of its Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom (including to refinance other Debt since
the first day of such four-quarter period) had occurred on the first day of such
period, (ii) the repayment or retirement of any other Debt of the Company or any
of its Subsidiaries since the first day of such four-quarter period had occurred
on the first day of such period (except that, in making such computation, the
amount of Debt under any revolving credit facility, line of credit or similar
facility shall be computed based upon the average daily balance of such Debt
during such period), and (iii) in the case of any acquisition or disposition by
the
<PAGE>
Company or any Subsidiary of any asset or group of assets since the first day
of such four-quarter period, including, without limitation, by merger, stock
purchase or sale, or asset purchase or sale, such acquisition or disposition
had occurred on the first day of such period with the appropriate adjustments
with respect to such acquisition or disposition being included in such pro
forma calculation. If the Debt giving rise to the need to make the foregoing
calculation or any other Debt incurred after the first day of the relevant
four-quarter period bears interest at a floating rate then, for purposes of
calculating the Annual Debt Service Charge, the interest rate on such Debt
shall be computed on a pro forma basis as if the average interest rate which
would have been in effect during the entire such four-quarter period had been
the applicable rate for the entire such period.
MAINTENANCE OF TOTAL UNENCUMBERED ASSETS. The Company will maintain
at all times Total Unencumbered Assets of not less than 150% of the aggregate
outstanding principal amount of the Unsecured Debt of the Company and its
Subsidiaries, computed on a consolidated basis in accordance with GAAP.
CERTAIN DEFINITIONS. As used herein, the following terms will have
the meanings set forth below:
"ANNUAL DEBT SERVICE CHARGE" as of any date means the amount which is
expensed in any 12-month period for interest on Debt of the Company and its
Subsidiaries.
"CONSOLIDATED INCOME AVAILABLE FOR DEBT SERVICE" for any period means
Consolidated Net Income plus, without duplication, amounts which have been
deducted in determining Consolidated Net Income during such period for
(i) Consolidated Interest Expense, (ii) provisions for taxes of the Company
and its Subsidiaries based on income, (iii) amortization (other than
amortization of debt discount) and depreciation, (iv) provisions for losses
from sales or joint ventures, (v) provisions for impairment losses, (vi)
increases in deferred taxes and other non-cash charges, (vii) charges
resulting from a change in accounting principles, and (viii) charges for
early extinguishment of debt, and less, without duplication, amounts which
have been added in determining Consolidated Net Income during such period
for (a) provisions for gains from sales or joint ventures, and (b)
decreases in deferred taxes and other non-cash items.
"CONSOLIDATED INTEREST EXPENSE" for any period, and without
duplication, means all interest (including the interest component of
rentals on capitalized leases, letter of credit fees, commitment fees and
other like financial charges) and all amortization of debt discount on all
Debt (including, without limitation, payment-in-kind, zero coupon and other
like securities) but excluding legal fees, title insurance charges, other
out-of-pocket fees and expenses incurred in connection with the issuance of
Debt and the amortization of any such debt issuance costs that are
capitalized, all determined for the Company and its Subsidiaries on a
consolidated basis in accordance with GAAP.
<PAGE>
"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.
"DEBT" means any indebtedness of the Company or any Subsidiary,
whether or not contingent, in respect of (i) money borrowed or evidenced by
bonds, notes, debentures or similar instruments, (ii) indebtedness secured
by any mortgage, pledge, lien, charge, encumbrance, trust deed, deed of
trust, deed to secure debt, security agreement or any security interest
existing on property owned by the Company or any Subsidiary, (iii) letters
of credit or amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an
accrued expense or trade payable or (iv) any lease of property by the
Company or any Subsidiary as lessee that is reflected on the Company's
consolidated balance sheet as a capitalized lease in accordance with GAAP,
in the case of items of indebtedness under (i) through (iii) above to the
extent that any such items (other than letters of credit) would appear as
liabilities on the Company's consolidated balance sheet in accordance with
GAAP, and also includes, to the extent not otherwise included, any
obligation of 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) of the type referred to in (i), (ii),
(iii) or (iv) above (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).
"EXECUTIVE GROUP" means, collectively, those individuals holding the
offices of Chairman, Vice-Chairman, Chief Executive Officer, President,
Chief Operating Officer or any Vice President of the Company.
"INTERCOMPANY DEBT" means indebtedness owed by the Company or any
Subsidiary solely to the Company or any Subsidiary.
"SECURED DEBT" means Debt secured by any mortgage, lien, charge,
encumbrance, trust deed, deed of trust, deed to secure debt, security
agreement, pledge, conditional sale or other title retention agreement,
capitalized lease or other security interest or agreement granting or
conveying security title to or a security interest in real property or
other tangible assets.
"SUBSIDIARY" means (i) any corporation, partnership, joint venture,
limited liability company or other entity the majority of the shares, if
any, of the non-voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Company, and the majority of the shares
of the voting capital stock or other equivalent ownership interests of
which (except for directors' qualifying shares) are at the time directly or
indirectly owned by the Company, any other
<PAGE>
Subsidiary or Subsidiaries, and/or one or more individuals of the
Executive Group (or, in the event of death or disability of any of such
individuals, his/her respective legal representative(s), or such
individuals' successors in office as an officer of the Company), and
(ii) any other entity the accounts of which are consolidated with the
accounts of the Company. This definition shall apply only for purposes
of the covenants set forth above under the captions "Limitation on
Incurrence of Total Debt," "Limitation on Incurrence of Secured Debt,"
"Debt Service Coverage," and "Maintenance of Total Unencumbered Assets,"
the other definitions set forth herein under the caption "Certain
Definitions," and, insofar as Section 801 of the Indenture is applicable
to the Notes, the term "Subsidiary," as used in Section 801(2) of the
Indenture, shall have the meaning set forth in this definition (instead
of the meaning set forth in Section 101 of the Indenture).
"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 GAAP (but excluding
accounts receivable and intangibles).
"TOTAL UNENCUMBERED ASSETS" as of any date means Total Assets minus
the value of any properties of the Company and its Subsidiaries that are
encumbered by any mortgage, charge, pledge, lien, security interest, trust
deed, deed of trust, deed to secure debt, security agreement or other
encumbrance of any kind (other than those relating to Intercompany Debt),
including the value of any stock of any Subsidiary that is so encumbered
determined on a consolidated basis in accordance with GAAP. For purposes
of this definition, the value of each property shall be equal to the
purchase price or cost of each such property and the value of any stock
subject to any encumbrance shall be determined by reference to the value of
the properties owned by the issuer of such stock as aforesaid.
"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 GAAP.
"UNSECURED DEBT" means Debt of the Company or any Subsidiary that is
not Secured Debt.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of
<PAGE>
such Event of Default as Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the Holders of a majority in
principal amount of the Notes at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Note for the enforcement of any payment of principal of, or
premium, if any, or interest on, this Note on or after the respective due
dates therefor.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of not less than a
majority in principal amount of the Notes at the time Outstanding, on behalf of
the Holders of all Notes, to waive compliance by the Company with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit
the Holders of not less than a majority of the aggregate principal amount of the
Outstanding Notes to waive, in certain circumstances, on behalf of all Holders
of the Notes, certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on, this Note
at the times, places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Security
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any Place of Payment for the Notes, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar for the Notes duly executed by, the
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein set forth, Notes of this series are exchangeable for a like aggregate
principal amount of Notes of this series of different authorized denominations,
as requested by the Holder surrendering the same.
The Notes of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. No service
charge shall be made for any
<PAGE>
such registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any past, present or future stockholder,
employee, officer or director, as such, of the Company or of any successor,
either directly or through the Company or any successor, whether by virtue of
any constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and
released.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature of one of its authorized signatories, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The headings included in this Note are for convenience only and shall
not affect the construction hereof.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
REALTY INCOME CORPORATION
[SEAL] By:
------------------------------
Thomas A. Lewis
Chief Executive Officer
Attest:
By:
--------------------------------------
Michael R. Pfeiffer
Senior Vice President, General Counsel
and Secretary
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
--------------------------------
Authorized Signatory
Dated: October , 1998
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, THE UNDERSIGNED HEREBY
SELLS, ASSIGNS AND TRANSFERS TO
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address
including Zip Code of Assignee)
the within Note of REALTY INCOME CORPORATION, and ______________________________
hereby does irrevocably constitute and appoint
________________________________________________________________________________
Attorney to transfer said Note on the books of the within-named Company with
full power of substitution in the premises.
Dated:__________________________ _____________________________________
_____________________________________
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranty _______________________________________
(Signature must be guaranteed by
a participant in a signature
guarantee medallion program)
<PAGE>
EXHIBIT 5.1
OPINION OF LATHAM WATKINS
[LETTERHEAD]
October 27,1998
Realty Income Corporation
220 West Crest Street
Escondido, California 92025
Re: Registration Statement No. 333-34311; up to $115,000,000
AGGREGATE PRINCIPAL AMOUNT OF 8 1/4% MONTHLY INCOME SENIOR
NOTES DUE 2008
Ladies and Gentlemen:
We have acted as special counsel to you in connection with the
issuance of up to $115,000,000 aggregate principal amount of 8 1/4% Monthly
Income Senior Notes due 2008 (the "Securities"), pursuant to a registration
statement on Form S-3 under the Securities Act of 1933, as amended (the "1933
Act"), filed with the Securities and Exchange Commission (the "Commission")
on August 25, 1997 (File No. 333-34311), as amended by Amendment No. 1 filed
with the Commission on September 16, 1997 (as so amended, the "Registration
Statement") and a prospectus supplement dated October 23, 1998 and a related
prospectus dated October 1, 1997 (collectively the "Prospectus"). Except as
otherwise expressly indicated, the terms Registration Statement and
Prospectus shall include all documents incorporated by reference therein.
As such counsel, we have made such legal and factual examinations
and inquiries as we have deemed necessary or appropriate for purposes of this
opinion. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents submitted
to us as copies. As to facts material to the opinions, statements and
assumptions expressed herein, we have, with your consent, relied upon oral or
written statements and representations of officers and other representatives
of the Company and others. In addition, we have obtained and relied upon
such certificates and assurances from public officials as we have deemed
necessary.
We are opining herein as to the effect on the subject transaction
only of the internal laws of the State of New York, and we express no opinion
with respect to the applicability thereto, or the effect thereon, of the laws
of any other jurisdiction
<PAGE>
or as to any matters of municipal law or the laws of any local agencies
within any state. Various issues concerning Maryland law are addressed in
the opinion of Ballard Spahr Andrews & Ingersoll, LLP, which has been
separately provided to you, and we express no opinion with respect to those
matters.
Capitalized terms used herein without definition have the meanings
assigned to them in the Purchase Agreement.
Subject to the foregoing and the other matters set forth herein, it
is our opinion that, as of the date hereof:
1. Assuming the due authorization, execution and delivery of the
Indenture by the Company under the laws of the State of Maryland and the due
authorization, execution and delivery of the Indenture by the Trustee, the
Indenture constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
2. Assuming the due authorization and execution of the Securities
by the Company under the laws of the State of Maryland, the Securities, when
authenticated by the Trustee in the manner provided in the Indenture
(assuming the due authorization, execution and delivery of the Indenture by
the Trustee) and delivered against payment of the purchase price therefor
specified in the Purchase Agreement, the Securities will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
The opinions rendered in the foregoing paragraphs relating to the
enforceability of the Indenture and the Securities, respectively, are subject
to the following exceptions, limitations and qualifications: (i) the effect
of bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting the rights and remedies
of creditors; (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or law, and the
discretion of the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or contribution
to a party with respect to a liability where such indemnification or
contribution is contrary to public policy; (iv) we express no opinion
concerning the enforceability of the waiver of rights or defenses contained
in Section 514 of the Indenture; and (v) we express no opinion with respect
to whether acceleration of the Securities may affect the collectibilityof
that portion of the stated principal amount thereof which might be determined
to constitute unearned interest thereon.
<PAGE>
To the extent that the obligations of the Company under the Indenture
may be dependent upon such matters, we assume for purposes of this opinion
that the Trustee under the Indenture is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization; that the
Trustee has complied with any applicable requirement to file returns and pay
taxes under the Franchise Tax Law of the State of California; that the
Trustee is duly qualified to engage in the activities contemplated by the
Indenture; that the Indenture has been duly authorized, executed and
delivered by the Trustee and constitutes a legally valid, binding and
enforceable obligation of the Trustee enforceable against the Trustee in
accordance with its terms; and the Trustee is in compliance, generally and
with respect to acting as trustee under the Indenture, with all applicable
laws and regulations; and that the Trustee has the requisite organizational
and legal power and authority to perform its obligations under the Indenture.
We consent to your filing this opinion as an exhibit to a current report on
Form 8-K and to the reference to our firm in the prospectus supplement dated
October 23, 1998 contained under the heading "Legal Matters."
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
EXHIBIT 5.2
OPINION OF BALLARD SPAHR ANDREWS AND INGERSOLL
[LETTERHEAD]
FILE NUMBER
863100
October 27, 1998
Realty Income Corporation
220 West Crest Street
Escondido, California 92025
Re: Registration Statement on Form S-3
REGISTRATION NO. 333-34311
Ladies and Gentlemen:
We have served as Maryland counsel to Realty Income Corporation, a
Maryland corporation (the "Company"), in connection with certain matters of
Maryland law arising out of the Company's registration statement on Form S-3
(No. 333-34311), and all amendments thereto (the "Registration Statement"),
previously declared effective by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"),
relating to the proposed public offering of securities of the Company that
may be offered and sold by the Company from time to time as set forth in the
prospectus dated October 1, 1997 which forms a part of the Registration
Statement (the "Base Prospectus"). This opinion is rendered in connection
with the sale and issuance of up to $115,000,000 of the Company's 8-1/4%
Monthly Income Senior Notes due 2008 (the "Notes"), as described in a
prospectus supplement dated October 23, 1998 (the "Prospectus Supplement"
and, together with the Base Prospectus, the "Prospectus"). Capitalized terms
used but not defined herein shall have the meanings given to them in the
Registration Statement.
In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
<PAGE>
Realty Income Corporation
October 27, 1998
Page 2
1. The Registration Statement and the related form of Prospectus in the
form in which it was transmitted to the Commission, under the 1933 Act;
2. A specimen of the certificate representing the Notes, certified as of a
recent date by the Secretary of the Company;
3. The charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
4. The Bylaws of the Company (the "Bylaws"), certified as of a recent
date by its Secretary;
5. Resolutions adopted by the Board of Directors of the Company (the
"Board"), relating to the sale, issuance and registration of the Notes,
certified as of a recent date by the Secretary of the Company;
6. Resolutions adopted by the Pricing Committee of the Board, relating to
the terms of the Notes, including the interest rate thereunder and the price
thereof, certified as of a recent date by the Secretary of the Company;
7. A certificate of the SDAT as to the good standing of the Company,
dated as of a recent date;
8. A certificate executed by Michael R. Pfeiffer, Secretary of the
Company, dated as of a recent date;
9. An indenture, dated October 28, 1998 (the "Indenture"), between the
Company and The Bank of New York, as Trustee, as supplemented and/or amended;
10. An Officer's Certificate, dated October 28, 1998, pursuant to Section
301 of the Indenture; and
11. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so far as
is known to us there are no facts inconsistent with, the following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
<PAGE>
Realty Income Corporation
October 27, 1998
Page 3
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding and are enforceable in accordance with all stated
terms
4. All Documents submitted to us as originals are authentic. The form and
content of the Documents submitted to us as unexecuted drafts do not differ in
any respect relevant to this opinion from the form and content of such Documents
as executed and delivered. All Documents submitted to us as certified or
photostatic copies conform to the original documents. All signatures on all
such Documents are genuine. All public records reviewed or relied upon by us or
on our behalf are true and complete. All statements and information contained
in the Documents are true and complete. There has been no oral or written
modification or amendment to any of the Documents, and there has been no waiver
of any provision of any of the Documents, by action or omission of the parties
or otherwise.
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and
by virtue of the laws of the State of Maryland and is in good standing with the
SDAT.
2. The Notes have been duly authorized, and upon the due execution,
countersignature and delivery of the Notes in certificated form, or the issuance
of the Notes in uncertificated form, in accordance with the Indenture, the Notes
will be duly and validly issued.
The foregoing opinion is limited to the substantive laws of the State of
Maryland and we do not express any opinion herein concerning any other law. We
express no opinion as to the applicability or effect of any federal or state
securities laws, including the securities laws of the State of Maryland, or as
to federal or state laws regarding fraudulent transfers. To the
<PAGE>
Realty Income Corporation
October 27, 1998
Page 4
extent that any matter as to which our opinion is expressed herein would be
governed by any jurisdiction other than the State of Maryland, we do not
express any opinion on such matter.
We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for your submission to the
Commission as an exhibit to the 8-K and incorporation by reference into the
Registration Statement and, accordingly, may not be relied upon by, quoted in
any manner to, or delivered to any other person or entity (other than Latham &
Watkins, counsel to the Company) without, in each instance, our prior written
consent.
We hereby consent to the filing of this opinion as an exhibit to the 8-K
and to the use of the name of our firm therein. In giving this consent, we do
not admit that we are within the category of persons whose consent is required
by Section 7 of the 1933 Act.
Very truly yours,
/s/ BALLARD, SPAHR, ANDREWS & INGERSOLL
<PAGE>
EXHIBIT 12.1
RATIO OF EARNINGS TO FIXED CHARGES
REALTY INCOME CORPORATION
STATEMENT OF COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
Six months ended June 30, Years ended December 31,
------------------------- -----------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income $20,232 $16,253 $34,770 $32,223 $25,600 $15,224 $29,318
---------------------------------------------------------------------------
Fixed Charges:
Interest 5,051 3,149 7,800 1,987 2,186 354 5
Amortization of fees 303 172 426 380 456 42 --
Interest Capitalized 234 82 168 150 217 -- --
---------------------------------------------------------------------------
Fixed Charges 5,588 3,403 8,394 2,517 2,859 396 5
---------------------------------------------------------------------------
Net Income before
Fixed Charges 25,586 19,574 42,996 34,590 28,242 15,620 29,323
Divided by Fixed Charges 5,588 3,403 8,394 2,517 2,859 396 5
---------------------------------------------------------------------------
Ratio of Earnings to
Fixed Charges 5 6 5 14 10 39 5,865
---------------------------------------------------------------------------
---------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 23.1
Consent of Latham & Watkins (contained in the opinion filed as
Exhibit 5.1 hereto)
EXHIBIT 23.2
Consent of Ballard Spahr Andrews & Ingersoll (contained in the opinion filed
as Exhibit 5.2 hereto)
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Realty Income Corporation:
We consent to incorporation by reference in Amendment No. 1 to the
Registration Statement No. 333-34311 on Form S-3 of Realty Income Corporation
and the related Prospectus dated October 1, 1997, and in Registration
Statement No. 33-95708 on Form S-8 of Realty Income Corporation, of our
report relating to the consolidated balance sheets of Realty Income
Corporation as of December 31, 1997 and 1996, and the related consolidated
statements of income, stockholders' equity and cash flows for each of the
years in the three-year period ended December 31, 1997, and the related
Schedule III. Such report is dated January 23, 1998, except as to Note 6A to
the consolidated financial statements, which is as of February 23, 1998, and
appears in the December 31, 1997, annual report on Form 10-K of Realty Income
Corporation.
We also consent to the reference to our firm under the heading "Experts" in
the Prospectus.
/s/ KMPG PEAT MARWICK LLP
San Diego, California
October 27, 1998
